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2011 DIGILAW 1439 (MP)

Prakash v. State of M. P.

2011-12-19

SHUBHADA R.WAGHMARE

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JUDGMENT : This Criminal Revision under Section 397 read with Section 401 of the Cr.PC has been filed by the appellant Prakash being aggrieved by order dated 1-12-11 passed by the learned Special Judge (NDPS), Indore in Sessions Trial No. 24/09 allowing the application filed by the respondent State under Section 216 of the Cr.PC for amending the charges. 2. Counsel for the petitioner has vehemently urged the fact that the charges for offence under Section 8/21 of the NDPS Act, were already framed against the appellant by the learned Judge of the Trial Court on 30-10-09. However, presently on the basis of the notification issued by the Central Government dated 18-11-09, the Trial Court has upon application by the respondent State amended the charges to include that the contraband was of commercial quantity since initially the Trial Court had depended on the case of E. Micheal Raj Vs. Intelligence Officer, Narcotic-Control Bureau, 2008 Cri.LJ 2250, whereby the Apex Court had held that for the imposition of the sentence for offence under Section 8/18/21 of the NDPS Act would be based on the content of offending drug in mixture and not on weight of the mixture itself and hence the amount is generally reduced substantially when only the purity of the contraband article is considered. In the present instance also Counsel stated that the contraband of the opium derivative of the present appellant was found to be 35.64 grams of brown sugar/heroine and the challan papers were put up and the offence was registered and the petitioner was duly committed to his trial bearing No. 24/09. The charges were framed on 30-10-09 and the accused statement recorded on 21-11-11. 3. Whereas the respondent State moved an application on 21-11-11 for amending the charges in the light of the notification issued by the Ministry of Finance (Department of Revenue) Notification, New Delhi, the 18th November, 2009. The charges were framed on 30-10-09 and the accused statement recorded on 21-11-11. 3. Whereas the respondent State moved an application on 21-11-11 for amending the charges in the light of the notification issued by the Ministry of Finance (Department of Revenue) Notification, New Delhi, the 18th November, 2009. The notification reads thus :- "S.0.2941 (E).- In exercise of the powers confirmed by clause (vii-a) and (xxiii-a) of Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) the Central Government, hereby makes the following amendment in the Notifications S.O. 1035 (a), dated 19th October, 2001, namely:- In the table at the end after Note 3, the following Note shall be inserted, namely :- "(4) The quantities shown in column 5 and column 6 of the Table relating to the respective drugs shown in column 2 shall apply to the entire mixture of any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content." (D. No. 662/33/2008-NC-I) Vimla Bakshi, Under Seer." 4. Counsel stated that in pursuance to the notification the Amendment Act came into effect by bringing material charges in the parent Act. The Act was given effect from particular date namely 2-10-01. Counsel stated that initially on the basis of the E-Micheal Raj (supra), the petitioner had been charged for being in possession of contraband which was of non-commercial quantity on the basis of the FSL report and the purity of the contraband; however, due to circular dated 18-11-2009 amendment in the schedule the respondent prosecution urged the Court to amend the charges on actual weight of the contraband recovered from the present petitioner, which was accepted by the Trial Court by order dated 1-12-2011 and hence the present petition. 5. Counsel stated that the petitioner had brought to the notice of this Court the same issued by the Apex Court in the matter of Harjit Singh Vs. State of Punjab, (2011) 4 SCC 441 , Jawahar Singh Vs. State of Delhi, (2009) 6 SCC 490 and E-Micheal Raj Vs. 5. Counsel stated that the petitioner had brought to the notice of this Court the same issued by the Apex Court in the matter of Harjit Singh Vs. State of Punjab, (2011) 4 SCC 441 , Jawahar Singh Vs. State of Delhi, (2009) 6 SCC 490 and E-Micheal Raj Vs. Intelligence Officer, 2008 (2) EFR 277, despite which the learned Judge of the Trial Court has distinguished the cases stating that the precedents pertain to consideration of the quantity of the contraband at the time of imposition of sentence and not at the time of framing of charge as required in the present case. 6. Counsel urged that the charges have been amended by the learned Judge on 1-12-11 by changing the quantity on 35.64 grams to 257 grams which was contrary to the provisions of law and well settled principles of criminal jurisprudence which state that it is the intention of the legislation, which should be considered; moreover a notification cannot have retrospective effect. Counsel also stated that he relied on Harjit Singh (supra), which was also placed before the learned Judge of the Trial Court. In the said case the Apex Court had categorically indicated that notification would have to the effect of enhancing the punishment and it cannot be applied retrospectively to a case which arose prior to the issuance of the notification and application retrospectively would warrant a retrial in terms thereof. Moreover the proviso of Section 41 (1) of the Amended Act categorically provided that the amendment would not have any effect on pending appeals and Article 20 (I) of the Constitution also entitles the accused to a fair trial without delay. The trial should not be reopened befitting the object for avoiding the delay of trials and this could have direct and deleterious consequence the amendment provisions of the Act were applied to a trial which had already concluded. In the instant case also the accused was initially charged for being in possession of non-commercial quantity of contraband smack, i.e., 35.64 grams on the basis of E. Micheal Raj (supra), which was now being converted to the commercial quantity, i.e., 257 grams on the basis of the notification. Counsel vehemently urged the fact that cause of action accrued to the State as well as to the accused on the date of the incident, i.e., 12-8-09. Counsel vehemently urged the fact that cause of action accrued to the State as well as to the accused on the date of the incident, i.e., 12-8-09. Whereas the notification is dated 18-11-09 and in this respect the ratio laid down by the Apex Court in the matter of Harjit Singh (supra), would apply in full force. Counsel prayed that the impugned order making amendment in the original charge be set aside. 7. Counsel for the respondent State on the other hand has opposed the submissions and prayed for dismissal of the revision. Counsel stated that the Court can alter or amend the charges at any time before judgment is pronounced and the Court was well within its power to do so when the Notification was brought to its notice. More so Counsel urged that when the Court has considered the case of Harjit Singh (supra), and found that the case would be applicable only in the matter at the time of imposition of punishment and not at the time of framing of charge. 8. On considering the above submissions, I find that the learned Judge of the Trial Court has erred in amending the charges by drawing a distinction; as such, against Harjit Singh (supra), decided by the Apex Court (supra). If the effect of framing of the charge would consequently result in enhancement of the sentence then it was essential for the Trial Court to have considered the applicability of the notification. The Apex Court had clearly held that it was the view that the notification dated 18-11 -2009 cannot apply retrospectively in the matter of Harjit Singh (supra). Moreover, it is the legislative intent as submitted by the Counsel for the petitioner that has to be seen. Section 21 of the Act as amended by the Act 9 of 2001 was to come into effect on 2-10-01. 9. After giving anxious consideration to the facts of the case at hand, I find that the matter is considered in detail in the matter of Jawahar Singh Vs. State of Delhi (supra), whereby the Apex Court had reinforced the fact that Section 41(1) proviso of the amendment Act categorically provides that the said amendment shall not have any effect on the pending appeals. State of Delhi (supra), whereby the Apex Court had reinforced the fact that Section 41(1) proviso of the amendment Act categorically provides that the said amendment shall not have any effect on the pending appeals. I also find that the Apex Court has considered the matter in quite detail and come to on conclusion that it was not the legislative intent to apply the notification retrospectively. And hence I have no hesitation in upholding the submissions very ably put forth by the Counsel for the non-applicant petitioner. 10. More so in the light, that criminal provisions providing for enhancement of the sentence, cannot operate retrospectively and as already stated above such a situation would lead to chaos and anomaly. The petition is therefore, allowed. The impugned order dated 1 -12-11 is set aside and the amendment made by the learned Judge of the Lower Court is quashed. 11. The Trial Court is directed to restore the quantity of the contraband in the charge framed as arrived at, at the time of framing of original charge on 30-10-09. It is further directed that the Trial Court shall reframe the charges accordingly and trial shall be completed as expeditiously as possible under the circumstances. The petition is allowed to the extent herein above indicated.