Holding

The NDPS (Amendment) Act, 2001 does not have retrospective effect; sentencing must be based on the law applicable at the time of the offence and conviction.

Summary

The appellant was arrested on 26 September 1999 for possession of 600 grams of heroin and was convicted under Section 21 of the NDPS Act, receiving a ten‑year rigorous imprisonment and a fine. The conviction was affirmed by the High Court, and the appellant appealed, contending that the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001—effective from 2 October 2001—should be applied retrospectively to reduce the sentence because it introduced the concepts of "small" and "commercial" quantities. The Supreme Court held that the amendment did not have retrospective effect; the offence and conviction occurred before the amendment came into force, and at that time the law made no distinction between small and commercial quantities. Consequently, the quantum of punishment must be determined according to the law in force at the time of the offence and conviction. The Court dismissed the appeal.

Issues considered

The amendment to the NDPS Act, 2001, whether it has retrospective effect on offences committed before its commencement.
Whether the quantum of sentence should be reduced by applying the amended provisions defining small and commercial quantities.
Whether the amendment applies to pending appeals and concluded trials.
Interpretation of the principle that substantive statutes are presumed to operate prospectively unless expressly stated otherwise.

Legislation cited

General Clauses Acts. 6
Narcotic Drugs and Psychotropic Substances Act, 1985s. 21, s. 2(viia), s. 2(xxiiia), s. 31, s. 34

Subjects

NDPS ActAmendment Act 2001Retrospective effectProspective operationSentencingSmall quantityCommercial quantityCriminal appeal

Judgment

··--· ...

[2009] 7 S.C.R. 495

. ,·
JAWAHAR SINGH @ BHAGAT JI A·
v. '
-~-../-~

STATE OF GNCT OF DELHI
Criminal Appeal No. 910 of 2009
MAY 5, 2009
8
(S.B. SINHA AND !?R. MUKUNDAKAM. SHARMA, JJ.)
.:
Narcotic Drugs and Psychotropic Substances Aet; · 1985: · ·
Sections 2(viia), 2(xxiiia), 21, 31, 34 - Amended .by the
Amendment Act, 2001 - Effect of - The amending Act cannot c
be said to have retrospective effect.
Interpretation of an amendment made in the Narcotic
. Drugs and Psychotropic Substances Act~ 1985 by reason . ·
.of the .Amendment Act, 2001 which ha~ came into effect
. from 2.10.2001 is in issue in the appe_aL ·' D
Dismissing the appea1, ·the Court
HELD: 1. The offence indisputably took piace on
26.09.1999. Appellant was convicted by a judgment dated
5.11.2000. The Amending.Act came into force on. 2.10.2001. E
.. ft is now beyond any doubt or dispute that the quantum· .
of punishment to be inflicted on an accused upon
recording a judgment of conviction would Ire as per the
' ·law, which was prevailing at the relevant time. [Paras 8,
·,·
. 10] [498-D-E, 499~E-F]
F
2. As on the date of commission of the offence and/
or the date of conviction, there was no distinction between
a small quantity and a commercial quantity, question of
infliction of a lesser sentence by reason ofthe provisions
of the Amending Act, would not arise. [Para 10} [499-F-G]
G
3. It is also a well-settled principle' of law· that a .
substantive provision unless specifically provided fot or ·.
otherwise intended by the Parliament should be held to
have a prospective OJ)eration. One of the facets of Rule or<
495 H
496 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Law is also that all statutes should be presumed to have
a prospective operation only. [Para 1O] [499-G-H]
4. The Amending Act did not bring about any signi-
ficant or material changes in the parent Act. The Parliament
had given effect thereto with effect from a particular date,
a· viz., 2.10.2001. If the Amending Act was to be given a retro-
spective effect, the amendments carried out in regard to
the provisions for holding of trial would have been required
to be complied with warranting a retrial in terms thereof.
" Thus, the Amending Act cannot be said .to have any
c retrospective effect. [Para 12, 17] {.501-G-H; 502-A, 505-G]
Rattan Lal v. The State ofPunjab AIR 1965 SC 444 -
held inapplicable.
State Through CBI, Delhi v. Gian Singh (1999) 9 SCC
312; Basheer alias N.P Basheer v. State of Kera/a (2004) 3
0 •
SCG 609; Amarsingh Ramjibhai Barot v. State of Gujarat
(2005) 7 SCC 550; The Superintendent, Narcotic Control
Bureau v. Parash Singh 2008 (13) SCALE 372 and E. Micheal
Raj· v. Intelligence Officer, Narcotic Control Bureau (2008) ·5
sec 161 - referred-- -
to.
,.;;
. ..
E
Case Law Reference
(1999) s sec 312 referred to Para 11
(200~} 3
....
sec 609
-;r~ -·~
referred to Para 13
F (2005) 1 sec 550 referred to Para 14
2008 (13) SCALE 372 referred to Para 14
(2008) 5 sec 161 referred to Para 1~_
AIR 1965 SC 444 held inapplicable Para 16
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal
No. 91 O of 2009
From the Judgement and Order dated 23.03.2007 of the
Hon'ble High Court of Delhi in Criminal Appeal No. 690 of2000.
H
JAWAHAR SINGH @ BHAGAT JI V. - 497
STATE OF GNCT OF DELHI

Gp. Capt. Daran Singh Bhati,Aishwarya Bhati, ReKha Glri, A
Sweta Rani, Himanshu Singh, for the AppeJlant. · ···.
K. Am~eshwari, Rachna Srivastava, Mohd. Noorullah,
Himani Jadaun (for Anil Katiyar) with him for the Respondent.
The Judgement of the Court was delivered by ·· 8
S.B ..,. SINHA, J.
1. Leave granted. ·.
2. Interpretation of an amendment made in the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short "the C
Act") by reason of the Narcotic Drugs and P~ychotropic
Substances (Amendment) .Act, 2001 (Act No. 9 of 2001) (for
short "the Amending Act") which has come into effect from
2.10.2001 is the question involved in this appeal.
3. The.said question arises in the following factual matrix. D.
On or about 26.09.1999, one Attar Singh, Sub-Inspector
received a secret information that the appellant herein would
come to a place known as Yamuna Pusta to deliver a
consignment of smack. On the basis of the said information, he
sent an intimation to the Asstt. Commissioner of Police, E
Narcotics Branch, whereupon he was directed by the Station
House Officer to conduct a raid. . .
At about 12.15 p.m. on the said date, allegedly, the.
appellant was apprehended at the given place. He is saiq to
have been provided with an option fcir getting himself searched · F
before a Magistrate or a Gazetted Officer wherefor a notice
under Section 50 of the Act was served. However, as he had
not opted to be searched before a Magistrate/ Gazetted Officer,
the appellant was searched by Sub Inspector Atar Singh.
G
Upon search of his person, 600 gms. of smack was
recove·red. Appellant was prosecuted under Section 21 of the
Act. Hi;l was sentenced to undergo rigorous imprisonment for
ten years. Fine of Rs.1,00,000/- was also imposed upon him.
4. Appellant preferred an appeal thereagainst, which by H
"498 . SUPREME ·coURT REPORTS [2009] 7 S.C.R.

. A ·reason of the impugned judgment dated 23.03.2007 has been
dismissed.
, ..
5. ·This Court by an order dated 22.09.2008 issued a
limited .notice with regard to the question as to whether the
quantum of sentence imposed upon the appellant was required
B to be considered having regard to the amendment carried out
by the Parliament in the year 2001 in the Act.
6. Gp. Capt. Karari Singh Bhati, learned counsel
appearing on behalf of the appellant, would contend that the
Amending Act being a beneficient legislation so far as an
C accused is concerned, the same will have a retrospective effect.
In any event, it was urged, this Court while considering the
question with regard to quantum of sentence should consider
the effect thereof having regard to the fact that the appellant is
in custody for a long period.
'
D 7. Ms. K. Amreshwari, learned senior counsel appearing
on behalf of the State, on the other hand; would support the
• impugned judgment.
8. The offence indisputably took place on 26.09.1999 .
. Appellant was convicted by a judgment dated 5.11.2000. As
E · indicated hereinbefore, the Amending Act came into force on
2.10.2001. By reason of the said amendment, "commercial
quantity" and "small quantity" were defined as under:
"2(viia) "commercial quantity", in relation to narcotic drugs
and psychotropic substances, means any quantity greater
than the quantity specified by the Central Government by
notification. in the Official Gazette;"
-. -· 2(xxiiia) "small qu13ntity", in relation to narcotic drugs and
psychotropic substances, means any quantity lesser t_han
the quantity specified by the Central Government by
G notification in the Official Gazette."
~ · 9. Section 21 of the Act, which was also amended by
· ·. Sectic;>n 8 of the said Amending Act, reads as under:
"21. Punishment for contravention in relation to
H manufactured drugs and preparations
· JAWAHAR SINGH @ BHAGAT JI V. _ 499
.STATE OF GNCT OF DELHr [S.S.- SINHA, -J.] -

Whoever, in contravention of any provision of this Act or A
any rule or order made or condition of licence granted
thereunder, manufactures, possesses, sells, purchases,
transports; imports inter-State, exports inter-State or uses
any manufactured drug or any preparation containing any
manufactured drug shall be punishable,-
B
(a) where the contravention 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) where the contravention involves quantity, lesser than C
commercial quantity but greater than small quantity, with
rigorous imprisonment for a term which may extend to ten
years and with fine which may-extena to or:ie lakh rupees;
(c) where the contravention involves commercial quantity,
... . with rigorous imprisonment for a term which shall not be D.
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 t~e court may, forreasons to be recorded in E
the judgment, impose a fine exceeding two lakh rupees."
. _ ___ 10. It is now beyond any doubt or dispute that the quantum
~.-- of punishment to be inflicted on an accused upon recording a
judgment of conviction would be as per the law, which was
prevailing at f!:ie relevant time. ·F
As on the date of commission of the offence and/ or the
date of conviction, there was no distinction between a small
quantity and a commercial quantity, question of infliction of a
lesser sentence by reason of the provisions of the Amending
- Act, in our considered opinion, would not arise. G
t It is also a well-settled principle of law that a substantive
provision unless specifically provided for or otherwise intended
by the Parliament' should be held to have a prospective
operation. One of the facets of Rule of Law is also that all statutes
should be presumed to have a prpspec~ive operation- only. H

..
500 SUPREME COURT REPORTS [2009] 7 S. C.R.

A 11. Mr. Bhati, however, has drawn our attention to a
decision of this Court in State Through CBI, Delhi v Gian Singh
[(1999) 9 SCC 312] wherein a Three-Judge Bench of this Court,
while considering the provisions of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 in regard to the question as to
B whether despite the fact that Section 3(2)(i) of the Terrorist and
Disruptive Activities (Prevention) Act, 1985 having provided for
imposition of death penalty, having regard to a saving clause
contained in Section 1(3) thereof mandating for a different t

outflow even after the expiry of the Act, held:

c "25. We have extracted Section 3(2) of the TADA Act,
1985 above. It could be discerned therefrom that the only
sentence which the sub-section permitted for awarding is
death penalty in case the terrorist act resulted in the death
of any person. It must be pointed out that TADA Act, 1985
remained in force only for a period of 2 years starting from
D 23-5-1985t. In other words, TADA Act, 1985 expired on _,
22-5-1987 (sic 23-5-1987). Instead of the statute reaching
the stage of expiry by the efflux of time, if it was repealed
by another statute, nothing would have survived from the
repealed statute unless the succeeding enactment
E incorporates necessary provision to the contrary. This is
pithily amplified in Section 6 of the General Clauses Act.
But the aforesaid legal implications of repeal of a statute
cannot be applied in the case of expiry of a statute, (vide
~
State of Punjab v. Mohar Singh Pratap Singh). Normally
the proceedings terminate ipso facto with the expiry of the
F statute. Craies on Statute Law at p. 409 of the 7th Edn.
has stated thus:
"As a general rule, and unless it contains some special
provision to the contrary, after a temporary Act has expired,
no proceedings can be taken upon it, and it ceases to
G
have any further effect. Therefore, offences committed
against temporary Acts must be prosecuted and punished ~
before the Act expires, and as soon as the Act expires any
proceedings which are being taken against a person will
ipso facto terminate." ·
H
JAWAHAR SINGH @ BHAGAT JI V 501
STATE OF GNCT OF DELHI [S.S. SINHA, J]

Having regard to the fact that an alternative to the death A
penalty, i.e., sentence for imprisonment for life, could be imposed
-· under the 1987 Act, it was held:
"31. If the position was just in the reverse order i.e. the
latter Act contained harsher sentence and the former Act
contained a lesser sentence the prohibition embodied in B
Article 20(1) of the Constitution that no person shall "be
• subjected to. a pe.nalty greater than that which might have
been inflicted under the law in force at the time of the
commission of the offence" would have come to the rescue
. of the offender. But the offender (who is liable to be c
convicted for the same offence, had it been committed
after the corning into force of the subsequent TADA Act,
1987) could have been punished with a sentence of
imprisonment for life, because such an alternative is

.. provided in that enactment."
As regards the purpose. for which the legislative .
D

benevolence carried out by reason of the said Act would be
extended, it was held:
"34. There is inconsistency between the se.ntencing scope
in Section 3(2) ofTADAAct, 1985-Cfndin the corresponding E
provision in TADA Act, 1987. The expression "in any
enactment other than this Act" would, under Section 25,
>I . encompass even an-enactment which, though expired by
the efflux of time, continues to operate by virtue of any
saving Qiause. Accordingly, the exclusivity of the extreme F
sentence contained in Section 3(2) of TADA Act, 1985
must stand superseded by.the corresponding benevolent
provision in TADA Act, 1987. It is a permissible course
and the express prohibition <:;ontained in Article 20(1) of
the CQ.n.sjitution is not a bar for resorting to the
G
correspondiil?Fsub,se.ction in TADA Act, 1987 ."
" 12. Act 9 of 2001 did not bring about any significant or
material changes in the parent Act. The Parliament had given
effect thereto with effect from a particular date; ·viz., 2, 10.2001.
If the Amending Act was to be given a retrospective effect, the H
502 SUPREME COURT REPORTS (2009] 7 S.C.R.

A amendments carried out in regard to the provisions for holding
of trial would have been required to be complied with warranting
a retrial in terms thereof.
13. One of the objectives of a criminal trial is that delay
should be avoided.
B
The proviso appended to Section 41 (1) of the Amending
Act categorically provides that the said amendment shall not
have any effect to the pending appeals. It is, therefore, an
indicator to show that the concluded trials should not be
reopened.
c In Basheer alias N.P Basheer v. State of Kera/a [(2004)
3 SCC 609], this Court took notice of the decision of this Court
in Gian Singh (supra) stating: ·
"22. Inasmuch as Act 9 of 2001 introduced significant and
D material changes in the parent Act, which would affect the
trial itself, application of the amended Act to cases where
the trials had concluded and appeals were pending on the
date of its commencement could possibly result in the
trials being vitiated, leading to retrials, thereby defeating
. at least the. first objective of avoiding delay in trials. The
E accused, who had been tried and convicted before 2-10-.
2001" (i.e. as per the unamended 1985 Act) could possibly
urge in the pending appeals, that as their trials were not
held in accordance with the amended provisions of the
Act, their trials mu.st be held to be vitiated and that they
F. should be retried in accordance with the amended
provisions of the Act. This could be a direct and deleterious
consequence of applying the amended provisions of the
Act to trials which· had concluded ahd in which appeals
were filed prior to the date of the amen.ding Act coming
into force. This would certainly defeatthe first objective of
G avoiding delay in such trials. Hence, Parliament appears
to have removed this class of cases from the ambit 6f the
amendments and excluded them from the scope of the
amending Act so that the pending appeals could be
disposed of expeditiously by applying the unamended Act
H without the possibility of reopening the concluded trials.
504 SUPREME COURT REPORTS [2009] 7 S.C.R..

A This Court in The Superintendent, Narcotic Control .,
Bureau v. Parash Singh [2008 (13) SCALE 372] followed
Basheer (supra) opining that by reason of the Amending Act, '
no new offence was created .. _,
I

15. Mr. Bhati would contend that it is a fit case where we
B should reduce the sentence, as has been done in E. Micheal
Raj v. Intelligence Officer, Narcotic Control Bureau [(2008) 5
sec 161].
In E. Micheal Raj (supra), this Court did not assign any
reason. It did not consider any of the decisions including Gian
c Singh (supra) and Basheer (supra). It merely held:
"20. In the present case, the narcotic drug which was found
in possession of the appellant as per the analyst's report
is 60 gm which is more than 5 gm i.e. small quantity, but
less than 250 gm i.e. commercial quantity. The quantity of
D
60 gm is lesser than the commercial quantity, but greater
than the small quantity and, thus, the appellant would be
punishable under Section 21 (b) of the NDPS Act. Further,
it is evident that the appellant is merely a carrier and is not
a kingpin."
E
No ratio was laid down therein. Although this Court noticed
_,
that the amendment had come into force with effect from
2.10.2001, the effect thereof had not been considered. It
proceeded on the basis that the amendment shall apply.
"'
F 16. Mr. Bhati strongly relied upon a decision of this Court
in Rattan Lal v. The State of Punjab [AIR 1965 SC 444] wherein
this Court applied the provisions of Probation of Offenders Act,
1958, stating:. ,_
" ... When it was contended that the word "may" in Section
G 11 of the Act empowers·the appellate court or the High
Court to exercise the power at its option and the words If
"any order under the Act" empower it to make an order
without reference to the standards laid down in the Act,
this Court rejected both the contentions. It held that the
H
JAWAHAR SINGH @ BHAGAT JI V 505
STATE OF GNCT OF DELHI [S.B. SINHA, JJ

J expression "may" has compulsory force and that the power A
conferred on the appellate court was of the same nature
and characteristic and subject to the same criteria and
limitations as those conferred on courts under Sections 3
i and 4 of the Act. This decision lays down three
I
p~opositions, namely, (i) an appellate court or a revisional B
( court can make an order under Section 6(1) of the Act in
{
exercise of its power under Section 11 (1) thereof; (ii) it
can make such an order for th'e first time even though the
trial court could not have made such an order, ·having regard . t.
to the finding given by it; and (iii) in making such an order c
it is subject to the conditions laid down in Sections 3, 4
and 6 of the Act. The only distinguishing feature between .
the present ca;:;e and the said decision is that in the present
case the trial court did not make the order as the Act was
not extended to the area within its jurisdiction and in .the
D
... said decision the trial court did not make the order as it
could not, on its finding that the accused was guilty of an
offence punishable with imprisonment for life. But what is
important is that this Court held thatthe High Court for the
first time could make such an order under Section 11 of
the Act, as such a power was expressly conferred with by . E
Section 11 of the Act. We, therefore, hold that the appellate
court in appeal or the High court in revision can, in exercise
~ of the power conferred under Section 11 of the Act, make
an order under Section 6(1) thereof, as the appellate court
and the High Court, agreeing with the Magistrate, found F
the accused guilty of the offences for which he was
charged."
The said decision, in our opinion, has no application in
the instant case.
G
. 17. We, therefore, are of the opinion that the Amending
Act cannot be said to have any retrospective effect. The appeal
is dismissed accordingly.

G.N. Appeal dismissed.