TaxTMI 
TaxTMI 
2004 (2) TMI 555
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....). 2. Although, the facts and other contentions raised in each of these appeals are different, for the purposes of deciding the question of law urged before us, it is sufficient to note that in all these cases the accused were convicted by the Trial Courts and had filed appeals before the respective High Courts. Further, their appeals were pending before the High Courts on 2nd October, 2001, when Act 9 of 2001, came into force. In all these cases, the accused were found guilty of offences in connection with narcotic drugs and psychotropic substances and were sentenced to rigorous imprisonment of 10 years and a fine of Rs. one lakh, which was the minimum punishment prescribed under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act, 1985") as it stood prior to the aforesaid amendment coming into force from 2nd October, 2001. 3. The NDPS Act, 1985 contemplates severe and deterrent punishment as is evident from the minimum term of imprisonment prescribed in Sections 21 and 22 of the NDPS Act, 1985. It was found that a large number of cases, in which the accused were found to be in possession of small quantity of drugs, were r....
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....t a drastic change. The Act introduced the concept of "commercial quantity" in relation to narcotic drugs or psychotropic substances by adding clause (viia) in Section 2, which defines this term as any quantity greater than a quantity specified by Central Government by notification in the Official Gazette. Further, the expression "small quantity" is defined in Section 2, sub-section (xxiiia), as any quantity lesser than the quantity specified in the notification. Under the rationalised sentencing structure, the punishment would vary depending on whether the quantity of offending material was "small quantity", "commercial quantity" or something in between. This is the effect of the rationalisation of sentencing structure carried out by the Amending Act 9 of 2001, in Section 27. A notification was issued on 9th October, 2001, specifying in respect of 239 Narcotic Drugs and Psychotropic Substances, as to what would be "small quantity" and "commercial quantity". 6. Apart from these provisions, the Act of 2001 introduced further amendments by substituting a new section for old Section 27 of the 1985 Act. A new provision, Section 32B was inserted by the Amending Act 9 of 2001, wh....
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....rovision comes into force. Hence, they contend that the benefit of the rationalised structure of punishment introduced by the Amending Act of 2001 should also be made available to all pending cases (including appeals) in Courts on the date of the amendment coming into force. Inasmuch as the proviso to Section 41 of Act 9 of 2001 denies them this benefit, by putting them in a different category, the said proviso is unreasonable and violative of the equality right guaranteed by Article 14 of the Constitution, resulting in hostile discrimination. They contend that, in reality, there could be no difference between cases pending before the Courts or cases pending in appeal, since an appeal is the continuation of the trial. Hence, they urge that the classification made by the legislature is unreasonable, not based on any intelligible differentia having rational nexus with the rationale or objectives of the amending Act. They cite in support of their contention the judgment of the Punjab and Haryana High Court in Ram Singh v. State of Haryana, 2003 (1) EFR 444, and the judgment of the High Court of Madhya Pradesh at Jabalpur in Ramesh v. State of Madhya Pradesh and Anr., (Writ Petition 53....
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....ty, they ought to be applied to the cases pending before the Court or even to cases pending investigation on the date on which the Amending Act came into force. Such application would not be hit by Article 20(1) of the Constitution. however, turns on this principle as far as the appeals before us are concerned. Notwithstanding the application of the mollifying provisions of the Act retrospectively, by the proviso to Section 41(1), Parliament has expressly declared that the benefit of the retrospective mollificatory provisions would not be available to the cases "pending in appeal". What is crucial is whether this segregation of "cases pending in appeal" and their exclusion from the application of the beneficial effects of the amending Act infringes the equality right guaranteed under Article 14 of the Constitution. 14. Counsel contend that there may be cases where the trial may have concluded before 2nd October, 2001; equally, for reasons not within the control of the accused, there may be cases where the trials may have continued beyond 2nd October, 2001. Therefore, on account of the fortuitous reason of quick disposal of trials prior to 2nd October, 2001, appeals might....
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....s not apply to other persons. The test of permissible classification is two fold : (i) that the classification must be founded on intelligible differentia which distinguishes persons grouped together from others who are left out of the group, and (ii) that differentia must have a rational connection to the object sought to be achieved. Article 14 does not insist upon classification, which is scientifically perfect or logically complete. A classification would be justified unless it is patently arbitrary. If there is equality and uniformity in each group, the law will not become discriminatory, though due to some fortuitous circumstance arising out of (sic) peculiar situation some included in a class get an advantage over others so long as they are not singled out for special treatment. In substance, the differentia required is that it must be real and substantial, bearing some just and reasonable relation to the object of the legislation." 19. We think that these observations are equally applicable to the cases before us. 20. Merely because the classification has not been carried out with mathematical precision, or that there are some categories distributed across t....
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....lification of the rigour of punishment has been made applicable. In the cases where the trials are concluded and appeals are pending, the application of the amended Act appears to have been excluded so as to preclude the possible contingency of reopening concluded trials. In our judgment, the classification is very much rational and based on clearly intelligible differentia, which has rational nexus with one of the objectives to be achieved by the classification. There is one exceptional situation, however, which may produce an anomalous result. If the trial had just concluded before 2-10-2001, but the appeal is filed after 2-10-2001, it cannot be said that the appeal was pending as on the date of the coming into force of the Amending Act and the amendment would be applicable even in such cases. The observations of this Court in Nallamilli's case (supra) would apply to such a case. The possibility of such a fortuitous case would not be strong enough reason to attract the wrath of Article 14 and its constitutional consequences. Hence, we are unable to accept the contention that the proviso to Section 41 of the amending Act is hit by Article 14. 24. We are also unable to agre....