Holding

The amendment did not create a new offence, but the penalty imposed cannot exceed the maximum punishment that was in force at the time the offence was committed.

Summary

A complaint was lodged under Section 8 of the NDPS Act, 1985 alleging an offence punishable under Section 20(b)(i). While the case was pending, the NDPS (Amendment) Act, 2001 altered the punishment provisions in Section 20, introducing a new sub‑clause (ii)(c) with higher penalties. The trial court framed charges under the amended provision, but the Calcutta High Court quashed them, holding that a new offence had been created because of the harsher punishment and directed that charges be framed under the original Section 20(b)(i). The appellant appealed to the Supreme Court, contending that no new offence was created and that only the penalty regime had changed. The Supreme Court held that the amendment did not create a new offence because the substantive elements of Section 8 remained unchanged; however, under Article 20(1) of the Constitution, a person cannot be subjected to a penalty greater than that which was in force at the time of the offence. Consequently, the appeal was dismissed, confirming that the higher punishment cannot be imposed and that the High Court’s direction to revert to the original provision was appropriate.

Issues considered

Whether the NDPS (Amendment) Act, 2001, by increasing the punishment for cannabis‑related offences, created a new offence in violation of Article 20(1) of the Constitution.
Whether charges framed under the amended Section 20(b)(ii)(c) can stand for an offence alleged to have been committed before the amendment.
Whether a higher penalty than that prescribed at the time of the commission of the offence can be imposed.

Legislation cited

Constitution of Indias. Article 20(1)
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(i), s. 20(b)(ii)(c), s. 8
NDPS (Amendment) Act, 2001

Subjects

NDPS ActAmendmentEx post factoArticle 20(1)CannabisPenalty escalationCriminal procedure

Judgment

[2008] 14 S.C.R. 474

A THE SUPERINTENDENT, NARCOTIC CONTROL BUREAU 1--
v.
PARASH SINGH
(Criminal Appeal No. 972 of 2003)
OCTOBER 15, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985
c - ss.8, 20(b)(i) ahd 20(b)(ii)(C) - Complaint made under s.8
alleging commission of offence under s.20(b)(i) - Meanwhile,
Amendment Act, 2001 introduced changes in s.20- Charges
framed under s.20(b)(ii)(C) (as amended) - Quashing of, by
High Court on ground that new offence was created as greater
punishment was imposed and direction to trial court to frame
0
charges under s.20(b)(i) - Correctness of- Held: Not correct
- Before and after amendment, the ingredients of s. 8 remained
the same - It did not create an offence retrospectively - Only -+--
punishment for contravention in relation to cannabis plant and
cannabis was amended - Thus no new offence was created
E by the Amendment Act - But at the same time no punishment
greater than what was originally provided for could be. imposed
on the accused - Constitution of India, 1950 -Article 20(1) -
Administration of Criminal Justice - Legislation - Amendment
of statute providing greater penalty - Sentence.
F
On 21.9.2001, a complaint was filed under s.8 of the ~
NDPS Act, 1985 alleging commission of offence punish-
able under s.20(b)(i) of the Act. Meanwhile the Act was
amended and charges were framed under s.20(b)(ii)(C) as
G inserted by the NDPS (Amendment) Act, 2001. The High
Court quashed the charges and directed trial court to
frame charges under s.20(b)(i). It was of the view that a
new offence was made out because a greater punishment ~
was imposed.

H 474
THE SUPERINTENDENT, N. C. BUREAU v. 475
PARASH SINGH

In the instant appeal, it was contended for the appel- A
lant that no new offence was created but what was pro-

.. '
vided for related to more stringent sentence.
Dismissing the appeal with certain clarifications, the
Court
, HELD: 1.1. It is manifest from Article 20(1) of the Con-
B
.-...;· stitution of India that it prohibits (1) making an Act for the
first time and then making that law retrospective and (2)
the imposition of the penalty may not be higher than what
is prescribed in law which was in force at the time of the c
commission of the offence. The validity of NDPS (Amend-
ment) Act, 2001 was upheld by this Court. The Court held
that (a) all cases pending before Courts on 2.10.2001 and
(b) all cases under investigation as on that date would be
disposed of in accordance with the provisions of the Act
""' D
as amended by the Amending Act. [Para 5] [478-E]
-+ 1.2. Before the amendment as well as thereafter, the
•,
ingredients of s.8 of NDPS Act, 1985 remained the same
and there was no amendment in this provision. Only the
provision imposing punishment for contravention in re- E
lation to cannabis plant and cannabis, i.e. s.20 of the Act
has been amended by the Amendment Act. Thus, no new
offence was created by the Amendment Act. But at the
same time no punishment higher than what was originally
provided for can be imposed on the accused. [Paras 5, 6] F
-1 [479-C-D]
Basheer@ N.P Basheer v. State of Kera/a (2004) 3 SCC
609; State through CBI Delhi v. Gian Singh (1999) 9 SCC 312;
T. Barai v. Henry Ah Hoe & Anr. (1983) 1 SCR 905 - referred to.
G
CASE LAW REFERENCE
,J(' (2004) 3 sec 609 referred to Para 5
(1999) 9 sec 312 referred to Para 5
... (1983) 1 SCR 905 referred to Para 5
H
I
1".

476 SUPREME COURT REPORTS [2008] 14 S.C.R.
(
'

A CRIMINALAPPELLATE JURISDICTION: Criminal Appeal ';. --
No. 972 of 2003_
From the final Judgment and Order dated 27.3.2002 of i
-~
the High Court of Calcutta in C.R.R. No. 514 of 2002
\

8.8. Singh, Binu Tamta, Kumar Rajesh Singh, Manoj 'r
B
Dwivedi and Sushma Suri for the Appellant.
Arjun Narayan Deo and 8albir Singh Gupta for the Re-
r
spondent.
·r-- I

\.-

,-
c
The Judgment of the Court was delivered by
•
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment of the Calcutta High Court quashing charges framed
jr:
under Section 20(b)(ii)(C) of the Narcotic Drugs and Psycho-
t
tropic Substances Act, 1985 (in short the 'NDPS Act') as
D
amended by Act 9 of 2001. The High Court directed ·the trial r
court to ffame charges under Section 20(b) (i) of the Act. ,!...
•,

2. The background facts in a nutshell are as follows:
+-
A complaint was filed under Section 8 of the Act alleging
~
commission of offence punishable under Section 20(b)(i) of the
E Act on 21.9.2001. The un-amended provision reads as follows:
"20. Punishment for contravention in relation to Cannabis
II
plant and Cannabis
Whoever, in contravention of any provision of this Act or
t
F any rule or order made or condition of licence granted
thereunder: ¥-
..
(b) Produces, manufactures, possesses, sells, purchases,
transports, imports inter-state, exports inter-state or uses
cannabis, shall be punishable
G
(i) Where such contravention relates to Ganja or the
cultivation of Cannabis Plant, with rigorous imprisonment
for a term which may extend to five years and shall also be ~

lia,ble to fine which may extend to fifty thousand
rupees ............ "
H .>

\.
THE SUPERINTENDENT, N. C. BUREAU v. 477
PARASH SINGH [DR ARIJIT PASAYAT, J.]

The NDPS Amendment Act, 2001 (hereinafter referred to A
as the 'Amendment Act') introduce certain changes. Charges
were framed in the instant case under Section 20(b)(ii)(c) of the
Act (as amended on 16.1.2002). The amended provision read
as follows:
"20. Punishment for contravention in relation to cannabis 8
plant and cannabis-Whoever, in contravention; of any
provisions of this Act or any rule or order made or condition
of licence granted thereunder:
(b) Produces, manufactures, possesses, sells, purchases, · ·c
transports, imports inter-State, exports inter-State or uses.
cannabis, shall be punishable-
(ii) Where such contravention relates to sub-clause (b)-
(a) and involves small quantity, with rigorous imprisonment
0
for a term which may extent to six months, or with fine,
which may extend to ten thousand rupees, or with both;
(b) and involves quantity lesser than commercial quantity
but greater than small quantity, with rigorous imprisonment
for a term which may extend to ten years and with fine E
which may extend to one lakh rupees;
(c) and involves commercial quantity, with rigorous
imprisonment for a term which shall not be 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 F
rupees but which may extend to two lakh rupees.
Provided that the court may, for reasons to be recorded in
the judgment, impose a fine exceeding two lakh rupees."
The High Court was of the view that a new offence was G
made out because a higher punishment was imposed. Stand
of the appellant is that no new offence was created but what
was provided for related to more stringent sentence. It is, there-
fore, submitted that the High Court was not justified in holding
that the new offence was committed. H
t
478 SUPREME COURT REPORTS [2008] 14 S.C.R.
,.--

A 3. Learned counsel for the respondent supported the judg-
ment of the High Court.
r- ~

4. In order to appreciate the .stand of the learned counsel
for the appellant a reference to Article 20 of the Constitution of
India, 1950 (in short the 'Constitution') reads as follows:
B
.,.__ ..
Protection in respect of conviction ff:!r offenc~s.
(1) No person shall be convicted of any offence except for
violation of a law in force at the time of the commission of
~,,

the Act charged as an offe11ce, nor be subjected to a
c penalty greater than that which might have been inflicted
under
-
the law in force at the time of the commission of the
offence. '---

(2) No person shall be prosecuted and punished for the
same offence more than once.
D
(3) No person accused of any offence shall be compelled
to be a witness against himself. t- _I
r
5: It is manifest from Article 20(1) that it prohibits (1) mak-
ing an Act for the first time and then making that law retrospec-
E tive. In other words it is not permissible to create an offence
retrospectiyely (2) the imposition of the penalty may not be higher
than what is prescribed in law which was in force at the time of
the commission of the offence. It needs to be noted that the
_validity of Amendment Act was challenged before this Court in
F Basheer@ N.P. Basheer v. State of Kera/a [2004(3) SCC 609].
~
The validity of the act was upheld. This Court held that (a) all
cases pending before the Court on 2.10.2001; (b) all cases under
investigation as on that date shall be disposed of in accordance
with the provisions of the Act as amended by the Amending Act.
G In State through CBI Delhi v. Gian Singh (1999(9) SCC 312) it
was held with reference to Article 20(1) of the Constitution that
it is a fundamental right of every person that he· should not be
subjected to greater penalty than what the law prescribes and
no ex-post facto legislation is permissible for escalating the
H severity of the punishment. But if any subsequent legislation
THE SUPERINTENDENT, N. C. BUREAU v. 479
PARASH SINGH [DR. ARIJIT PASAYAT, J.)
-I I down grades the harshness of the sentence for the same of- A
fence, it would be salutary principle for administration of crimi-
nal justice to suggest that the said legislative benevolence can
be extended to the accused who awaits judicial verdict regard-
ing sentence. The view expressed in Gyan Singh's case (su-
pra) finds support from the case of T Barai v. Henry Ah Hoe & B
Anr. [1983 (1) SCR 905]. The High Court was not ju~tified in
------(
holding that new offence was created. Before the amendment
as well as after the amendment the ingredients of Section 8
mt remain same and there was no amendment in this provision.
Only punishment for contravention in relation to cannabis plant c
and cannabis i.e. Section 20 of the Act has been amended by
the Amendment Act.
6. The appeal is, therefore, dismissed with clarification
that no new offence was created by the Amendment Act. But at
the same time no punishment higher than what was originally D
) provided for can be imposed on the accused.
-;-
7. The appeal is dismissed with the aforesaid clarifica-
tion.
D.G. Appeal dismissed. E