CHANDAN DAS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The matter is taken up today for passing order on the bail petition filed by the petitioner - accused. We have already heard the submissions of both sides. The contention of Mr. Bagchi, the Ld. Advocate for the petitioner, is that the offences alleged against the petitioner are to be treated as practically bailable in view of the latest amendment of the N.D.P.S. Act, 1985 (as amended in 2001) (Act 9 of 2001), because, the quantity of heroin which has been seized from the possession of the petitioner being only 3.5 grams fall short of the prescribed "small quantity" which amounts to 5 (five) grams as per the Govt. Notification issued under the said amended Act Mr. Begchi refers to the provisions of section 3 of the amended Act where under 'small quantity' in relation to Narcotic Drugs and Psychotropic Substances has been defined to mean any quantity lesser than the quantity specified by the Central Govt. by Notifications in the Official Gazette, namely, the Notification of the Govt. of India, Ministry of Finance, dated 27th September, 2001 and also the Notification dated 19th October, 2001. Under the latter the quantity constituting "small quantity", "commercial quantity" etc. of an offensive article which may be found in the possession of the accused have been specified in Column Nos. 5 & 6 respectively of that Table given thereunder.

(2.) In support of his contention Mr. Bagchi has referred to three decisions of the Apex Court. In the decision relied upon by Mr. Begchi, it has been held that the rules framed by the Govt. with relation to any Act cannot override this statutory power conferred under the Act on any particular body and the Govt. can only make the rules for carrying out the purposes of the Act and under the guise of doing so it cannot convert an authority with power into a recommendatory body or it cannot by any such rule vest in itself a power which, under the Act vests in another body and when such rules are found to be inconsistent with the provisions of the Act they cannot prevail. In the second ruling cited by Mr. Begchi it has been held that whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clause Act though it has been specifically mentioned in the repealing Act or not, will follow, unless, as the section itself says, a different intention appears.

(3.) As against this, Mr. Moitra, Ld. Public Prosecutor, has strongly refuted such a claim of the defence and has argued that the amending Act cannot but take effect on and from the date as has been appointed by the concerned Govt. by means of the Notification and under any circumstance the matters since before that date cannot be brought within the purview of the amending Act or be given its benefit. According to him once the Legislature has conferred the power on the Govt. to announce a date from which a particular Act is to take effect, then if any Notification is published by that Govt. in pursuance of such a mandate fixing a date from which it is to come into force, that date will be the final one and the provisions of the enactment cannot be given retrospective effect, however otherwise might be conveyed by the provisions of that Act and therefore in this pending case the offence cannot be brought within the fold of lesser-punishment-cases on the ground of the quantity of heroin seized constituting a 'small quantity' as per the new definition enshrined under the amending Act.