- (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. According to serial No. 56 of this Table in order to fall within the category of 'small quantity' the quantity of heroin found in the possession of the accused person shall not exceed 5 (five) grams. Mr. Bagchi next drawn our attention to the amended section 21(a) of the Act which lays down that where the contravention involves 'small quantity' it shall be punishable with rigorous imprisonment for a term which may extend to six months or with fine or with both. Then he further attracts our notice to section 27 of the principal Act as amended under the said Amendment Act whereunder the maximum punishment provided is only rigorous imprisonment for one year. Thus according to Mr. Bagchi, the quantity of heroin recovered from the petitioner being 'small quantity' within the meaning of the above definition the penalty provided for will be less than two years and therefore will have to be treated as bailable offence in view of the provisions of the Second Schedule of the Code providing that in case of offences under other laws that the Indian Penal Code, they shall be bailable if the maximum punishment awardable is imprisonment for less than three years only. Mr. Bagchi then takes resort to the provisions of section 41 of the said Amendment Act which lays down that 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 an 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 on appeal. Mr. Bagchi contends that in view of this clear and express provision, in case of the pending matters the lesser punishment if otherwise applicable will have to be awarded irrespective of the date from which the Act may have to take effect and if the lesser punishment is awardable in case of such an offence after holding trial, then, while considering the bail prayers of the accused persons in respect of such offences the Court should also be governed by the new quantum of penal provision. In other words, since the offence is punishable with imprisonment for a period which does not exceed even a year, the rigorous of the first part of the provisions of section 37 of the NDPS Act in the matter of granting of bail to an accused would not befall such a prayer for bail and it will be governed by the general provisions of bail containei in section 439 of the Code of Criminal Procedure without being under any obligation to observe the preconditions spelt out in the first part of section 37 for the purpose of releasing the accused on bail.
(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. However, when the repeal is followed by fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. It has been further held that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by its implication and the rule is however subject to the limitation contained in Article 20(1) against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act. In the third ruling referred to by Mr. Bagchi reported in 1999 Judgment Today Volume VI, SC 575 it has been held that it is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribed and no ex post facto legislation is permissible for escalating the severity of the punishment and if any subsequent legislation would downgrade the harshness of the sentence regarding the same offence it would be a salutary principle for administration of criminal justice by extending that benefit to the accused who awaits that judicial verdict regarding the sentence.
(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. In support of his contention Mr. Moitra refers to a decision of the Apex Court (Isher Dass vs. State of Haryana, 1992 AIR(SC) 1595). In this case the appellant had been convicted under section 7 of the Essential Commodities Act read with clause 3 of the Haryana Milk and Milk Products Control Order, 1975 and was sentenced to pay a fine of Rs. 1000/-. A revision petition was filed against that order of conviction and it was the contention of the appellant that the Control Order was for a short period, namely, from 23.5.1975 to 20.7.1975 and the prosecution could not be continued after the expiry of that period and hence since the prosecution in this case continued even after the expiry of that period, the conviction was bad and illegal. Against this it has been held by the Apex Court that the trial in respect of an offence committed when the Control Order was in force, cannot be expected to be completed within such a short period and it has to be trine in spite of the expiry of that period and mere expiry of the period does not make any difference and thus the pending prosecution cannot be said to have been invalidated. This judgment in our considered opinion has no application to the facts and circumstances of the present case. It is more so, particularly, in view of the fact that hereunder the amended section 41 the legislative intent has been made expressly clear by using the words, "notwithstanding anything contained in sub-section (2) of section 1 ..............". Sub-section (2) of section 1 of this amending Act provides that this Act shall come into force on such date as the Central Govt., by Notification in the Official Gazette, appoint. The abovementioned words, therefore, are very significant leaving no room or scope for doubt or debate that so far as the mandate of this section 41 is concerned the question of fixing a date from which amending Act is to come into force becomes redundant and it will take effect immediately with regard to the pending proceedings. These provisions of section 41 thus mean in effect that if in respect of any pending case, an accused person is found guilty of an offence, then so far as the punitive aspect is concerned, he shall be liable for a punishment which is lesser than the punishment for which he would have been otherwise liable at the date of commission regarding punishment as provided under the amending Act irrespective of the date fixed by the Govt. for the enactment's 'statement of object' which prompted the Legislature to initiate this amending provisions. Vide clause 17 of the 'Statement of Objects and Reasons' which lays down that the enactment seeks to liberalise the bail provisions in respect of certain offences. From the above it follows that if for the purpose of punishment in respect of a pending case the amending provisions are to be applied, then for the purpose of considering the question regarding granting of bail the same principle and procedure cannot but be observed. Moreover in respect of this point also the Legislature has made its intention clear by using the expression, "all cases pending before the Courts or under investigation at the commencement of this Act ..........." This means that not only those cases which are pending for trial but also the matters which are undergoing investigation are to be brought within the fold of this section. The clear purpose of including the investigation stage within the purview of the section is inclusion of the bail applications also into the expression' 'pending cases'. From that stand point therefore there cannot be any denying the position that in case of a bail petition also we are to treat the offence in question as one having fallen in the lesser-punishment group. If that be so, it is needless to point out that the seized heroin weighing only 3.5 grams constitutes 'small quantity' for which the punishment either under section 21 or under section 27 does not exceed imprisonment for one year and from that point of view it becomes a bailable offence in view of the provisions of the Second Schedule of the Code of Criminal Procedure and we have no other alternative but to consider this case as a fit one for granting bail to the accused petitioner on suitable conditions. Accordingly it is ordered that the accused-petitioner may be released on furnishing bail bond for Rs. 10,000/- with two sureties of Rs. 5,000/- each, one being a local, to the satisfaction of the learned Special Judge under the N.D.P.S. Act, Alipore, South 24 Parganas. The application is thus disposed of.;