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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 ..... d 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 Rs. 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 appearing on behalf of the appellant, would contend that the Amending Act being a beneficient legislation so far as an accused is concerned, the same will have a retrospective effect. In any event, it was urged, this Court while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this Court, while considering the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 in regard to the question as to whether despite the fact that Section 3(2)(i) of the Terrorist and Disruptive Activities (Prevention) Act, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 987) 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 corresponding sub-section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to accept the contention that the proviso to Section 41 of the amending Act is hit by Article 14." On the aforementioned finding, the decisions of the Division Benches of the Punjab and Haryana High Court and the Madhya Pradesh High Court, which had applied the said Amendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred 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. But what is important is that this Court held that the 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 Section 11 of the Act. We, therefore, hold that the appellate court in appeal or the High court in revision ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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