IN RE: DHIMAN DUTTA ALIAS CHINTU Vs. XYZ

JUDGEMENT

(1.) The matter is taken up for passing order on the bail petition filed by the petitioner. It has been argued on his behalf that the offence under sections 21 and 27 of the NDPS Act, 1985 though otherwise non- bailable should be treated as bailable in view of the recent amendment of the said Act (Act No. 9 of 2001) whereunder the expression 'small quantity' has been redefined. According to Mr. Roy the quantity of heroin seized in this case being only. 890 grams will fall within the category of'small quantity' rendering the offence punishable with imprisonment for six months under section 21 and one year under section 27 of the said Amendment Act only. His further contention is that in view of the provisions of section 41 of the amended NDPS Act the lessor punishment which has been prescribed under the amended section 21 or 27 of the Act should be awardable in respect of all pending matters including bail-petitions and in that view of the matter under the provisions of the Second Schedule of the Code Criminal Procedure the offence should be treated as 4 bailable one, the maximum punishment that can be awarded for such an offence being only one year. Mr. Roy further attracts our attention to the provisions of section 40 of the said Act read with its section 2 and argues that the intention of the legislature has been made all the more clear by providing that every rule made under this Act by the Central Govt. and every Notification or order issued under clause (VIIa), clause (XI), clause (XXIIIa) of section 2, section 3, section 7A, section 9A and clause (a) of section 27 shall be laid, as soon as may be, after it is made or issued. According to him, the Notification in question being in respect of section 2 (XXIIIa) this provision of section 40 will be attracted and it is to be assumed that the intention of the legislature has been to expedite the issuance of Notification by the Govt. so that the amended provisions may be given effect to as soon as possible after the enactment came into existence.

(2.) Mr. Moitra, Id. Additional Public Prosecutor opposes this contention of the petitioner and submits that in such matters the date as announced by a Notification from which the enactment is to take effect should be regarded as unchangeable and the court has no other alternative but to give effect to the legislation on and from that date. He refers to the preamble of the Govt. Notification in question in support of this contention that the amended Act in question (Act No. 7 of 2001) is to take effect from the date announced, that is, 2nd day of Oct., 2001, and if that be so there is no scope for this court to apply the provisions of the amended Act to this pending case.

(3.) We have taken into consideration the judgment passed by this Division Bench in another similar case being No. CRM 3914 of 2001 dated 29.9.2001 in respect of a case where the facts and circumstances are identical. We do not subscribe to the view expressed by Mr. Moitra that the date from which the enactment is to take effect as per the Govt. Notification should be treated as firm and rigid and the Court has no scope to go beyond that date in the matter of giving of effect to the amending provisions even on the face of the mandatory nature of the provisions of section 41 of the amended Act. In our opinion, the provisions of section 41 are quite radical and expressive of the intention of the legislature that there should not be any hesitation in the matter of giving retrospective effect to the salutary provisions of the amending Act in respect of the pending provisions including the bail petitions. In this regard we also place our reliance on the objects with which this amending legislation was enacted by the legislature. The object No, 13 clearly envisages that this amendment is brought into light in order to liberalise the provisions regarding granting of bail under the NDPS Act which were otherwise stringent. We are of the opinion that in view of the provisions of section 41 the clear intention of the legislature in such matters is that the pending cases should be brought within the purview of these amending provisions by giving retrospective effect to them and the fact that the provisions of the Govt. Notification are in conflict with the dictates of the legislature as reflected under the provisions of section 41 should be resolved by drawing the conclusion that the latter will prevail. Since as per the Notification dated 19th Oct., 2001 of the Ministry of Finance, Govt. of India (vide serial No. 56 of the Table) read with section 3 of the amended Act the minimum quantity of heroin in order to form 'small quantity' should be below 5 (five) grams and since in the present case the seized heroin is undisputedly lesser than that quantity, we are inclined to hold that the accused-petitioner is entitled to the beneficial provisions of the amended Act. In other words, in view of the Second Schedule of the Code Criminal Procedure the offence being punishable with imprisonment for one year should be regarded as a bailable one.