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TMI Blog2009 (5) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 said to have been provided with an option for getting himself searched 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. Upon search of his person, 600 gms. of smack was recovered. Appellant was prosecuted under Section 21 of the Act. He was sentenced to undergo rigorous imprisonment for ten years. Fine of ₹ 1,00,000/- was also imposed upon him. 4. Appellant preferred an appeal thereagainst, which by 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 to be considered having regard to the amendment carried out by the Parliament in the year 2001 in the Act. 6. Gp. Capt. Karan Singh Bhati, learned counsel ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fine which shall not be less than one lakh 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. 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 the relevant time. 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. 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 prospective operation only. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 convicted for the same offence, had it been committed after the coming 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 benevolence carried out by reason of the said Act would be extended, it was held: 34. There is inconsistency between the sentencing scope in Section 3(2) of TADA Act, 1985 and in the corresponding provision in TADA Act, 1987. The expression in any enactment other than this Act would, under Section 25, encompass even an enactment which, though expired by the efflux of time, continues to operate by virtue of any saving clause. Accordingly, the exclusivity of the extreme 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 contained in Article 20(1) of the Constitution is not a bar for resorting to the corres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endency of appeal. In the cases of pending trials, and cases pending investigation, the trial is yet to conclude; hence, the retrospective mollification 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 case would apply to such a case. The possibility of such a fortuitous case would not be a strong enough reason to attract the wrath of Article 14 and its constitutional consequences. Hence, we are unable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence to the standards laid down in the Act, this Court rejected both the contentions. It held that the expression may has compulsory force and that the power 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 and 4 of the Act. This decision lays down three propositions, namely, (i) an appellate court or a revisional 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 the first time even though the trial court could not have made such an order, having regard to the finding given by it; and (iii) in making such an order it is subject to the conditions laid down in Sections 3, 4 and 6 of the Act. The only distinguishing feature between the present case 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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