Mr.M.R.Chaudhary v. State of Kerala

Mr.M.R.Chaudhary, Division Police Officer, Morbi Division, Morbi, has received definite information on 29.7.1999 that one Karshanbhai Kanjibhai Satvara, residing at Vajpar Street No.14, Morbi, used to keep “ganja” illegally in his residence and used to sell the same. Therefore, raid was carried out at the said place and two panchas namely, (1) Bipin CR.A/627/2002 JUDGMENT Jagjivan and (2) Anant Jayrambhai, residents of Morbi were called and preliminary panchnama was made. Mr.Chaudhary, panchas and the police persons – P.S.I – B.M.Solanki, Unarmed Head Constable – Dinkarbhai Raval, Unarmed Head Constable – Shashikant Acharya, Police Constable – Polabhai, driver – Digvijaysinh and a Trader – Shri Salimbhai Gulambhai Ganchi, who was called upon for weighing, resident of Morbi, have started in the government Jeep No.G.J. 3-275 after checking the panchas and police and reached at 18.30 hours to Morbi for carrying out the raid at the house of Karshanbhai Kanjibhai residing at Vajpar, Street No.14.

To prove the culpability of the accused the prosecution has examined as many as 11 witnesses, details of which are as under:- Sr.No. Particulars Page No. Exh .No . 1 2 3 4 5 6 7 8 9 10 11 P.W No.1 – Hitendrakumar Ramjibhai. 6 38-55 P.W No.2 – Anirudh Jamnashankar. P.W No.3 – Sundarji Chetandas. P.W No.4 – Jagdish Kanji. P.W No.5 – Dinkray Himatray. P.W No.6 – Salim Gulamhusen. P.W No.7 – Pola Sukhabhai P.W No.8 – Bipin Jagjivan. P.W No.9 – Laxman Devabhai. P.W. No.10 – Amra Somabhai. 18 20 21 23 24 26 73-78 80-81 82-83 85-90 91-92 94-99 27 100-101 28 102-103 29 104-105 P.W No.11 – Bhuptsinh Mansinh. 30 106-112

Prosecution has also produced as many as 5 documents and relied upon the contents of the same, details of which are as under:- CR.A/627/2002 JUDGMENT Sr. Particulars Exh. Page No. No.

FIR.

Seizer Memo.

Panchnama. No. 7 10 15 56-58 61 66-68

04. Extract from Station 16,17 70 to 72 & 79 Diary.

05. FSL Report 19 43 128-130

After recording of the evidence of the prosecution witnesses was over, the learned Additional Sessions Judge, Morbi, explained to the accused the circumstances appearing against him in the evidence of the prosecution witnesses and recorded his further statement under Section-313 of the Code. In his further statement, the accused has denied the case of the prosecution by reiterating that he has been falsely implicated. CR.A/627/2002 JUDGMENT

On appreciation, evaluation, analysis and close scrutiny of the evidence adduced by the prosecution, the learned Additional Sessions Judge, Morbi, has held that the accused is guilty of committing an offence under Sections-20(b) of the Act and he was convicted of the said offence.

Learned Additional Sessions Judge, Morbi, thereafter heard the accused and his advocate on sentence and looking to the gravity of the offence committed by the accused and looking to the circumstances, accused was sentenced to suffer R.I of 10 years and fine of Rs.1 lac and in default thereof, S.I. Of 2 years for offence punishable under Section-20(b) of the Act.

Being aggrieved by the said judgment and order, the accused has filed the aforesaid appeal before this Court. CR.A/627/2002 JUDGMENT

At the out set it is made clear by Mr.Pravin S. Gondaliya, learned advocate appearing for the appellant that he is not challenging the order of conviction and he was addressing the Court only on the question of sentence. Since he has not challenged the conviction it is not necessary for this Court to reappreciate the evidence. As far as imposition of sentence is concerned, Mr.Gondaliya submitted that offence is committed on 29.7.99 and the appellant – accused is in the custody from that date. The appellant – original accused is convicted on

28.5.2002. When the offence was committed the Old Act was in force. The Act was amended with effect from 2.10.2001. Under the Old Act the production, manufacturing selling, purchasing, transporting warehousing, using, consuming etc, of ganja is prohibited under Section-8(c) and punishment for such production, manufacturing etc was imposable under Section-20(b)(i) for CR.A/627/2002 JUDGMENT a term which may extend to 5 years and to pay fine which may extend to Rs.50,000/-. Under the amended Act, which has come into force with effect from 2.10.2001, the production, manufacturing etc, of ganja is punishable under Section-20(b)(i) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees.

Mr.Gondaliya has, however, submitted that Section-41 of the Amended Act, 2001 provides that any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence. Thus, on

29.7.1999 when the offence was committed it was punishable with imprisonment for 5 years. The provisions of the amended Act would not CR.A/627/2002 JUDGMENT be applicable and hence under no circumstance the appellant-accused could have been convicted for any term larger than the term of 5 years. Mr.Gondaliya has, therefore, submitted that the appellant is in jail since

29.7.1999 and as on today he has already completed more than 7 years. His confinement beyond 5 years would be totally illegal and unjustified and hence the appellant-accused deserves to be released forthwith.

Mr.K.T.Dave, learned Additional Public Prosecutor, on the other hand submitted that during the course of investigation and trial the Amended Act was very much in force and the date on which the Session Case was decided by the learned Additional Sessions Judge, Morbi, the Amended Act is in force and hence the punishment of R.I of 10 years is rightly imposed by the learned Additional Sessions Judge, Morbi, and no interference is called for, especially when the appellant- CR.A/627/2002 JUDGMENT accused has not pressed his ground challenging the conviction.

To appreciate the controversy raised before the Court, it is worthwhile to have a close look at the relevant provisions of the Act. Section-8 prohibits certain operations. Sub Section-(c) of Section-8 says that,

No person shall - produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance.

Section-20 of the Act imposed punishment for contravention in relation to cannabis plant and cannabis. Section-20(b) reads as under :- “Whoever, in contravention of any provisions of this Act or any rule or order made or condition of license granted thereunder:- produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable, - CR.A/627/2002 JUDGMENT (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;

By virtue of the Narcotic Drugs and Psychotropic Substances Act, 2001 Section- 20(b)(ii) is amended and after its amendment it reads as under :- “Section-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 license granted thereunder,- (a) cultivates any cannabis plant; or (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 clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause CR.A/627/2002 JUDGMENT (b),- (A) and 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) 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.)

Section-41 of the Amendment Act, 2001 deals with application of the said Act to pending cases. Sub Section-1 of Section-41 of this Amendment Act reads as under:- CR.A/627/2002 JUDGMENT

Sub Section-1 of Section-41 – 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.

Section-41(1) has come up for consideration before the Hon'ble Supreme Court in the case of Basheer alias N.P.Basheer vs. State of Kerala, reported in (2004) 3 Supreme Court Cases 609. It is observed by the Hon'ble Supreme Court that by this section, Parliament has declared its intention to apply the amended provisions of CR.A/627/2002 JUDGMENT the Act to: (a) all cases pending before the court on 2.10.2001; (b) all cases under investigation as on that date; and provides 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. The Court further observed in para-12 of the judgment that all statues must be interpreted as prospective in operation, unless retrospectivity is expressly declared by the statute or to be inferred as the necessary intendment 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 term, says that the amending Act would apply to all cases CR.A/627/2002 JUDGMENT 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, the court found 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.

From the aforesaid observations made by the Hon'ble Supreme Court, it is clear that CR.A/627/2002 JUDGMENT the Hon'ble Supreme Court was mainly concerned in that case with rationalisation of the sentence structure. The controversy which arises before this Court in the present appeal was not there before the Hon'ble Supreme Court. However, the observations which have been made to the effect that 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), would certainly help the present appellant and it would be a guiding factor to resolve this controversy. The Court was also mindful of the fact that the amendment in the form of rationalising the sentencing structure is more beneficial to the accused and amount to mollification of the rigour of the law. However, if on the basis of this amendment a person who has committed the offence prior to this amendment, subjecting him conviction and sentence of 5 years and CR.A/627/2002 JUDGMENT whose offence was investigated and tried after the said amendment shall not be made him liable to the enhanced sentence of 10 years instead of 5 years, as it would certainly hit by rules against post facto legislation contained under Article-20(1) of the Constitution of India.

Article-20(1) reads as under :- “Article-20(1) No person shall be convicted of any offence except for violation of the 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.

Prohibitions imposed by Article-20 are directly relevant to the criminal process. Clause (1) is concerned with the substantive law of criminal liability and penalty. Later portion of this article clearly reveals that CR.A/627/2002 JUDGMENT no person shall be subjected to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The offence admittedly committed on 29.7.1999. On that date, old provisions are in force and for commission of such offence, the accused appellant was liable to be sentenced for imprisonment of 5 years and fine of rupees fifty thousand and in default thereof S.I of 6 months. If the amending provisions are made applicable to the appellant's case in that case the appellant-accused would be liable to be sentenced for R.I of 10 years with fine of Rs.1 lakh and in default thereof S.I of 1 year. This should not be the intention of the legislature and it would hit by the rule against post facto legislation contained in Article-20(1) of the Constitution of India.

It is very unfortunate that the learned CR.A/627/2002 JUDGMENT advocate appearing on behalf of the appellant – accused before the learned Additional Sessions Judge has raised the contention that he has gravely erred in awarding the sentence for RI of 10 years, as the Act itself is not providing such heavy punishment. It is further stated in the appeal memo that the case of appellant – accused is of 1999 and was pending when the amendment Act of 2001 came into force. Therefore, the provisions of Old Act would be applicable and the appellant – accused could not have been sentenced for more than 5 years and could not have been imposed fine of Rs.1 lac. Since the learned Additional Sessions Judge, Morbi, has sentenced the appellant – accused for RI of 10 years and imposed a fine of Rs.1 lac, the order passed by him is bad in law and against the provisions of the Act and hence the same is required to be quashed and set aside. It appears that the learned Additional Sessions Judge, Morbi, has not taken into CR.A/627/2002 JUDGMENT consideration this aspect of the matter and without any application of mind straightway imposed the sentence of RI of 10 years and fine of Rs.1 lac under the amended provisions. The appellant accused should have been sentenced only for RI of 5 years with fine of Rs.50,000/- and in default thereof to undergo S.I of six months. Since the appellant – accused has already undergone the sentence for more than 7 years which is more than the sentence imposable under the old provisions even with default of fine i.e 5 years and six months, no further sentence is required to be undergone by the appellant – accused.

While taking this view, we derive support from the decision of this very Bench of this Court in case of Thakarshi Naranbhai Patel vs. State of Gujarat & Another, reported in 2006(3) GLH 603, wherein, on identical facts, the sentence was reduced from 10 years to 5 CR.A/627/2002 JUDGMENT years by considering the old provisions of the Act.

In the above view of the matter, we partly allow this appeal and while confirming the conviction, for the reasons stated hereinabove, we reduce the sentence of 10 years with fine of Rs.1 lac and in default thereof S.I of 2 years to sentence of R.I 5 years with fine of rupees fifty thousand and in default thereof S.I of 6 months. Since the appellant has already undergone this sentence, we direct the jail authority to release the appellant-accused forthwith if his presence is not required in respect of any other case. This appeal is accordingly partly allowed. (A. M. KAPADIA, J.)

(K. A. PUJ, J.)