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2002 DIGILAW 731 (PNJ)

Ram Singh v. State Of Haryana

2002-07-31

HEMANT GUPTA, R.L.ANAND

body2002
Judgment Hemant Gupta, J. 1. The present appeal is directed against the judgment of conviction dated 17.5.1988, convicting the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act) for possessing 4 Kilograms of Poppy Husk. 2. The present appeal had been placed before the Division Bench in pursuance of the order dated February 6, 2002 which is passed in continuation of earlier order passed by the learned Single Judge on January 4, 2002. The order dated January 4, 2002 and that of February, 2002 read as under : "The appellant has been convicted under section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lacs as the same was the minimum sentence under the Act. The Act of 1985 has, however, been amended by Act No. 9 of 2001 and the case of the appellant falls under clause (b) of Section 15 of the amended Act under which there is a discretion to award lesser sentence and there is no minimum sentence provided. Section 41 of the Amended Act makes amendment applicable to all cases pending under investigation or pending before the court, but the proviso added to this section says that nothing in the said Act shall apply to cases pending in appeal. Counsel for the appellant contents that cases pending in trial and cases pending in appeal stand on the same footing and the appeal is the continuation of the trial and there is no rational distinction why the cases pending in trial and the cases pending in appeals should be treated as different and, therefore, the proviso will violate Articles 14 and 21 of the Constitution. This is an important question which will affect a number of cases. Before taking any final decision in the matter, it will be necessary to hear the Central Government Standing Counsel since the statute involved is the Central Act. It will be in the interest of justice that the Public Prosecutor, Chandigarh and the Advocate Generals of Punjab and Haryana are notified about hearing of the case. Before taking any final decision in the matter, it will be necessary to hear the Central Government Standing Counsel since the statute involved is the Central Act. It will be in the interest of justice that the Public Prosecutor, Chandigarh and the Advocate Generals of Punjab and Haryana are notified about hearing of the case. Let the case be posted for further hearing on 14.1.2002 at 1.45 P.M. A copy of this order be sent to the Central Government Senior Standing Counsel, Public Prosecutor, Chandigarh Administration, Advocate General Punjab and the Advocate General, Haryana. Sd/- January 4, 2002 (Adarsh Kumar Goel) Judge" "By order dated 4.1.2002, notice was ordered to be sent to the Central Government Senior Standing Counsel, Public Prosecutor, Chandigarh Administration, Advocate General, Punjab and Advocate General Haryana to consider the validity of the proviso to section 41 of the Narcotic Drugs & Psychotropic Substances (Amendment) Act, 2001, which excluded pending appeals from the purview of the amending Act while extending the amending Act to pending trials and the cases pending investigation. It ws submitted by counsel for the appellant that the cases pending investigation and trial, and the cases pending in appeal stood on the same footing and there was no rational in not extending the amending Act to the appeals, while extending the same to cases pending investigation and cases pending trial. Counsel for the Central Government has referred to explanation to rule 1 (xxix) of Chapter 3-B of the High Court Rules and Orders, Volume V and submitted that even though jurisdiction under Article 226 of the Constitution of India may be exercised even in absence of a formal writ petition, the same has to be listed before a Division Bench for admission. Counsel for the appellant also submits that having regard to the importance of the matter, it will be preferable that the matter is placed before the Division Bench. Let this appeal be placed before a Division Bench for consideration of the matter. Since a number of appeals will be affected by the decision of the court on the question of validity of the proviso in question, liberty is granted to the parties to mention for urgent hearing. List the matter, subject to the order of Honble Chief Justice, before a Division Bench on 11.2.2002 for directions. Sd/- (Adarsh Kumar Goel)" February 6, 2002 3. List the matter, subject to the order of Honble Chief Justice, before a Division Bench on 11.2.2002 for directions. Sd/- (Adarsh Kumar Goel)" February 6, 2002 3. The question which is required to be considered by us is whether proviso to Section 41(1) of Act No. 9 of 2001 is violative of Articles 14 and 21 of the Constitution of India, having no rational distinction. It was contended that the grant of benefit of amended Act only to the proceedings pending before the trial Courts and not to appeals is clearly based on classification having no rational nexus with the object to be achieved and thus, such classification is illegal and is liable to be struck down. 4. In pursuance of the notices, the States of Punjab, Haryana, Central Government and Chandigarh Administration have put in appearance, on the validity of proviso in question. We have heard Shri C.B. Kaushik, Advocate for the appellant, Shri D.P. Singh, Additional Advocate General, Haryana, Shri M.C. Beri, Deputy Advocate General, Punjab, Shri R.S. Rai, Senior Standing Counsel for Central Government and Shri Ajay Lamba, Standing Counsel for U.T. Chandigarh at great length. 5. The Act as originally enacted contemplates deterrent punishment with rigorous imprisonment for a term which shall not be less than ten years but which may extend to 20 years. The Act contemplates severe punishment for drug traffickers, but envisages reformative approach towards addicts. The sentence was sought to be rationalised so as to ensure that while drug traffickers, who could traffic any significant quantity of drugs are punished with different sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. Keeping in view the said objects Sections 15, 17, 18 and 20 to 23 were suitably amended vide Act No. 9 of 2001 with the following Objects and Reasons : "Statement of Objects and Reasons :- Amendment Act 9 of 2001 :- The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deferent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of a 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. Most of the offences invite uniform punishment of a 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 diterrent 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." 6 In nut shell Three different levels of punishment were contemplated which are reproduced as follows : (i) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with the 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 to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees; 7. The Act also substituted the definition of Addict as a person who has dependence on any narcotic drugs or psychotropic substance. However, the challenge is only to proviso to Section 41(1) of the Act No. 9 of 2001. Section 41 reads as under : "41. Application of this Act to pending cases. The Act also substituted the definition of Addict as a person who has dependence on any narcotic drugs or psychotropic substance. However, the challenge is only to proviso to Section 41(1) of the Act No. 9 of 2001. Section 41 reads as under : "41. Application of this Act to pending cases. - (1) Notwithstanding anything contained in sub-section (2) of Section 1, all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence : Provided that nothing in this section shall apply to cases pending in appeal. (2) For the removal of doubts, it is hereby declared that no act or omission on the part of the any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force." 8. The argument of the learned counsel for the appellant is that the benefit of the amending Act whereby distinction has been made between a small quantity, commercial quantity and a quantity contravening less than commercial quantity but greater than small quantity are dealt with separately providing three different level of punishments. It was argued that the benefit of amending Act should have been extended to the pending proceedings which are subject-matter of appeal. It was argued that the appeal is nothing but continuation of trial and, therefore, denying the benefit of provisions of the Amending Act to the pending appeals is wholly illegal and has no reasonable nexus with the object to be achieved. The objective of the amending Act is to provide severe punishment for drug traffickers but envisages reformative approach towards addicts or the accused who contravenes the provisions of the Act involving small quantity. Since the very purpose of the Act is to grant benefit in the cases involving small quantity or less than commercial quantity, therefore, denying such benefit to the appellant is wholly unjustified. Since the very purpose of the Act is to grant benefit in the cases involving small quantity or less than commercial quantity, therefore, denying such benefit to the appellant is wholly unjustified. Such distinction carved out by inserting proviso to Section 41(1) offends Articles 14 and 21 of the Constitution of India and in fact the very basis of law whereby the appeal is stated as continuation of trial. 9. It cannot be disputed that the provisions of the amending Act No. 9 of 2001 reduces the rigour of punishment in certain categories and thus it is a beneficial legislation. It is well settled that a beneficial legislation shall apply to proceedings pending before the Court. In fact in Rattan Lal v. State of Punjab, AIR 1965 SC 444, where the benefit of Probation of Offenders Act was extended to a convict who was convicted prior to applicability of the Act, it was held : "The first question is whether the High Court, acting under S. 11 of the Act, can exercise the power conferred on a court under S. 6 of the Act. It is said that the jurisdiction of the High Court under S. 11(3) of the Act is confined only to a case that has been brought to its file by appeal or revision and, therefore, it can only exercise such jurisdiction as the trial court had, and in the present case the trial Court could not have made any order under S. 6 of the Act, as at the time it made the order the Act had not been extended to Gurgaon District. On this assumption, the argument proceeds, the Act should not be given retrospective operation, as, if so given, it would affect the criminal liability of a person for an act committed by him before the Act came into operation. In support of this contention a number of decisions bearing on the question of retroactivity of a statute in the context of vested rights have been cited. Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective. Under Ar. In support of this contention a number of decisions bearing on the question of retroactivity of a statute in the context of vested rights have been cited. Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective. Under Ar. 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of that 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. But an ex post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition. If a particular law makes a provision to that effect, though retrospective in operation, it will be valid. The question whether such a law is retrospective and, if so, to what extent depends upon he interpretation of a particular statute, having regard to the well settled rules of construction. Maxwell in his book "On Interpretation of Statutes" 11th edition, at pp. 274- 275, summarizes the relevant rule of construction thus : "The Tendency of, modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statutes are now constructed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, then formerly. It is unquestionably right that the distinction should be altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischief aimed at are if the language permits, to be held to fall within its remedial influence." 10. Subsequently, in T. Barai v. Henry Ah Hoe and another, AIR 1983 Supreme Court 150 it has been held that there is no reason as to why accused should not have the benefit of reduced punishment by virtue of amendment during the pendency of proceedings. In para Nos. 22 and 23 it was held as under :- 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 prohibits nor shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment by applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense. This finds support in the following passage from Caries on Statute Law, 7th Edn. at pp 387-388 : "A retrospective statute is different from an ex post factor statute. "Every ex post facto law... ... The principle is based both on sound reason and common sense. This finds support in the following passage from Caries on Statute Law, 7th Edn. at pp 387-388 : "A retrospective statute is different from an ex post factor statute. "Every ex post facto law... ... .." said Chase J. in the American of Calder v. Bull, (1798) 3 Dallas 386, 391 (US) "must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, it is good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement; as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction.... There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime." 23. To illustrate, if Parliament were to re-enact Section 302 of the Indian Penal Code, 1860 and provide that the punishment for an offence of murder shall be sentence for imprisonment for life instead of the present sentence of death or imprisonment for life, then it cannot be that the Courts would still award a sentence of death even in pending cases". 11. It is, thus, apparent that Act. No. 9 of 2001 is a beneficial legislation giving benefit to certain accused. However, the question is whether the classification made by Legislature while enacting provision to sub-section (1) is legal and valid and whether such classification has reasonable nexus with the objective to be achieved. If the classification is based on perfectly intelligible principle having clear and reasonable relation to the object sought to be attained then the proviso can be said to be legal and valid otherwise, it will suffer from the vice of unconstitutionality being violative of Article 14 of the Constitution of India. If the classification is based on perfectly intelligible principle having clear and reasonable relation to the object sought to be attained then the proviso can be said to be legal and valid otherwise, it will suffer from the vice of unconstitutionality being violative of Article 14 of the Constitution of India. In Kedar Nath Bajoria v. The State of West Bengal, AIR 1953 Supreme Court 404 it was held as under :- "(Held after considering the background of the legislation and its preamble, purpose and the provisions that the system of Special Courts to deal with the special types of offences under a shortened and simplified procedure was devised, to meet the situation and that the legislation in question was based on a perfectly inteligible principle of classification having a clear and reasonable relation to the object sought to be attained." 12. Subsequently, in a case wherein challenge was made on trial made by Magistrate and not by the Court of Session claiming equal protection under Article 14 of the Constitution of India, the Honble Supreme Court in Budhan Choudhry and others v. State of Bihar, AIR 1955 S.C. 191 held as under : "It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an ineligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condems discrimination not only by a substantive law but also by a law of procedure. The contention now put forward as to the invalidity of the trial of the appellants has, therefore, to be tested in the light of the principles so laid down in the decisions of this Court." 13. The contention now put forward as to the invalidity of the trial of the appellants has, therefore, to be tested in the light of the principles so laid down in the decisions of this Court." 13. The long line of judgments pertaining to the test of permissible classification is not well known. Recently, the Honble Supreme Court in Thimmappa v. Chairman, Central Board of Directors, SBI, (2001) 2 SCC 259 : 2001 SCC (L&S) 374 : AIR 2001 SC 467 and Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34 has reiterated the said principle. It was held in Ashutosh Guptas case as under : "The concept of equality before law does not involve the idea of absolute equality amongst all, which may be a physical impossibility. All that Article 14 guarantees is the similarity of treatment and not identical treatment. However, what amount of dissimilarity would make the people disentitled to be treated equally, is rather a vexed question. Mere differentiation or inequality of treatment does not "per se" amount to discrimination within the inhibition of the equal protection clause. When a law is challenged as violative of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Thereafter, the court has to apply a dual test in examining the validity viz. whether the classification is rational and based upon an intelligible differentia which distinguished persons or things grouped together from those left out of the group, and whether the basis of differentiation has any rational nexus or relation with its avowed policy and objects. Moreover, the inequality complained to must arise under the same piece of legislation or under the same set of laws which have to be treated together as one enactment. Inequality resulting from two different enactments made by two different authorities in relation to the same subject will not be liable to attack under Article 14. It is well settled that Article 14 does not require that the legislative classification should be scientifically or logically perfect." 14. In fact such is the consistent principle of law that Article 14 prohibits class legislation but not reasonable classification for the purpose of legislation. It is well settled that Article 14 does not require that the legislative classification should be scientifically or logically perfect." 14. In fact such is the consistent principle of law that Article 14 prohibits class legislation but not reasonable classification for the purpose of legislation. A classification which is based on intelligible differentia which distinguishes persons or things from others left out of a group and that diffentia must have a rational relation to the object sought to be achieved. No doubt appeal can be said to be classification but such classification is not based on any intelligible differentia and such differentia has no rational relation to the object sought to be achieved. Therefore, denial of benefit of amending Act to the proceedings pending in appeal is violative of Article 14 of the Constitution of India. 15. It is well settled that appeal is continuation of trial. The Appellate Court has power and jurisdiction to reverse the finding, acquit the accused or order him to be retried. The power and jurisdiction of the appellate Court are defined under Section 386 of the Code of Criminal Procedure which reads as follows : "Power of the Appellate Court :- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Sec. 377 or Sec. 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find his guilty and pass sentence on him according to law: (b) in an appeal from a conviction :- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature, or the extent, or the nature and extent, of the sentence, but not so as to enhance the same : 16. Thus, in appeal the Appellate Court is seized of the entire case and in fact appeal is continuation of trial. Honble Supreme Court in Smt. Akhtari Bi v. State of M.P., 2001(2) RCR(Crl.) 302 (SC) : AIR 2001 Supreme Court 1528, has held that appeal being a statutory right, the trial Courts verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction. 17. Chapter 29 of the Code of Criminal Procedure Code of which above Section 386 is a part confers a substantive right of appeal in the State as well as in an accused. The Code provides in detail the mode of preferring appeals and the manner of their admission and hearing thereafter. Appeals are rehearing and reappraisal of the evidence and the appellant is entitled to agitate all questions of facts and law before a court of criminal appeal. It is manifest that the nature of criminal appeal under the Code whether against conviction or directed against acquittal is a rehearing and condition of the trial. In this context reference may be made to Bhupendra Singh v. State of Punjab, AIR 1968 Supreme Court 1438 as well as 1969 Criminal Law Journal 6, and Surjit Singh Singh v. State of Punjab (1969) 1 SCWR 1229. 18. Thus appeal being rehearing of the entire case and is pending before the court would be entitled to the benefit of amending Act No. 9 of 2001. As mentioned above the exclusion of benefit of liberalise provisions of the Act as substituted by Act No. 9 of 2001 to cases pending in appeal is without any intelligible differentia and without having any reasonable nexus with the object to be achieved, therefore, we hereby strike down the proviso and issue a writ in the nature of mandamus directing that the proviso to sub-section (1) of Section 41 of Act No. 9 of 2001 "provided that nothing in the section shall apply to the cases pending in appeal" shall not be given effect to being violative of Article 14 of the Constitution of India being a classification without any reasonable nexus with the object to be achieved. Consequently, it is held that Act No. 9 of 2001 shall be applicable to all cases pending before the courts or under investigation at the commencement of the said Act and shall be disposed of in accordance with the provisions of the principal Act as amended by Act No. 9 of 2001 irrespective of the fact whether such cases are pending in appeal or before the trial Court. 19. Since the reference to the Division Bench regarding constitutionality of proviso to sub-section (1) of Section 41 of Act No. 9 of 2001 has been answered in the above terms, now the appeal be placed before the learned Single Judge for disposal in accordance with the law.