- (1.) WHEN hearing of these appeals was taken up, the learned counsel appearing on behalf of the appellant, at the outset, submitted that amendment has been made in S. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (9 of 2001) whereby S. 21 of the principal Act has been substituted and lesser punishment has been prescribed. The counsel submitted that the amended provision shall apply in the case in hand and in view of the small quantity seized from possession of the accused, the maximum sentence that could have been awarded was six months.
(2.) S . 41(1) and sub-section (2) of S. 1 of the amending Act read thus: "41. (1) Notwithstanding anything contained in sub-section (2) of S. 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 S. shall apply to cases pending in appeal." "1. (2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different provisions of this Act, and any reference in any provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision." It appears that as the matter in relation to the appellant was pending in appeal by virtue of the proviso aforesaid, prima facie, the amended provision shall have no application to the instant case. The learned counsel submitted that a distinction has been made for applicability of the amended provision as according to S. 41 the same shall apply in relation to those cases alone, which were pending either under investigation or before the trial court and under the proviso cases which were pending in appeal on the date of coming into force of the amending Act shall have no application. It has been submitted that the proviso being discriminatory is violative of the equality clause enshrined under Art. 14 of the Constitution of India. Though this point was not raised before the High Court, but has been raised in the present case specifically in ground IV(b). As the constitutional validity of the proviso has been challenged, we feel it would be expedient to permit the appellant to implead the Union of India as the respondent in these appeals, which is accorded.
(3.) ISSUE notice to the Union of India. Let a copy of the brief be served upon the learned Attorney General for India within a week from today. Put up for hearing after the service is completed.;