Holding

The proviso to Section 41(1) of the NDPS (Amendment) Act, 2001, which excludes cases pending in appeal from the benefit of the amendment, is constitutionally valid and does not infringe Article 14.

Summary

The appellants, convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985, had pending appeals when the NDPS (Amendment) Act, 2001 came into force on 2‑October‑2001. Section 41(1) of the amendment applied the new graded‑sentence regime to all pending cases except those "pending in appeal". The appellants argued that this exclusion violated Article 14 of the Constitution because it created an unreasonable classification. The Supreme Court held that the classification was based on intelligible differentia and had a rational nexus with the legislative objectives of avoiding trial delays and rationalising sentencing. Consequently, the proviso was deemed constitutionally valid and not violative of Article 14. The appeals were dismissed and the cases were to be decided under the pre‑amendment NDPS Act.

Issues considered

The constitutionality of the proviso to Section 41(1) of the NDPS (Amendment) Act, 2001 excluding cases pending in appeal from the benefit of the amendment
Whether the classification created by the proviso violates Article 14 of the Constitution
Whether the retrospective application of a mollifying amendment is barred by Article 20(1)

Legislation cited

Constitution of Indias. Article 14, s. Article 20(1)
Narcotic Drugs and Psychotropic Substances Act, 1985s. 2, s. 21, s. 22, s. 27, s. 41
Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001s. 41(1)

Subjects

Article 14EqualityRetrospective legislationNDPS ActSentencing structureCriminal lawClassificationAppealsEx post factoLegislative intent

Judgment

A BASHEER@ N.P. BASHEER
v.
STA TE OF KERALA

FEBRUARY 9, 2004

B [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]

Narcotic Drugs and Psychotropic Substances (Amendment) Act, 200 I:

Section 41(/) proviso-Constitutionality of-Various provisions of the
C NDPS Act, 1985 were amended and graded sentences prescribed based on the
quantity of narcotic drug or psychotropic substance in respect of which the
offence was committed-The amended provisions were applicable to all cases
pending before the courts on 2-10-2001 or under investigation on that date-
But the proviso to S. 41 (I) excluded the benefit of the amendment to. cases
D pending in appeal on that date-Held: Classification rational and based on
intelligible dijferentia having nexus with one of the objectives of the Act viz.,
avoidance of delay in trials-The fortuitous possibili(v 1?( an accused getting
the benefit of the amendmeni where trial concluded before 2-10-2001 and
appeal filed thereafter would not render the proviso unconstitutional.

E Constitution of India, 1950:

Article 14-Classification-Held: Marginal over-inclusiveness or under-
inc/usiveness not violative of Art. 14.

The· appellants-accused were convicted by the trial court fo.r offences
F under the Narcotic Drugs and Psychotropic .Substances Act, 1985 and their
appeals were pending before the High Court on 2-10-2001, the date on
which the Narcotic Drugs and Psychotropic Substances (Amendment) Act,
2001 came into force.

The provisions of the NDPS Act, 1985 were amended by the Narcotic
G Drugs and Psychotropic Substances (Amendment) Act, 2001, which
rationalized the structure of punishment under the Act by providing
graded sentences Jinked to the quantity of narcotic drug or psychotropic
substance in relation to which the offence was committed. The application
of strict bail provisions was also restricted only to those offenders who
H 224
.... BASHEER@N.P. BASHEER v. STATE OF KERALA 225
indulged in serious offences. A
Section 41(1) of the .NDPS (Amendment) Act, 2001 made the
amended provisions of the NDPS Act, 1985 applicable to (a) All cases
pending before the court on 2nd. October, 2001; or (b) All cases under
investigation as on that date. However, the proviso to Section 41(1) of the
NDPS (Amendment) Act, 2001 excluded the application of the rationalized B
sentencing structure to cases pending in appeal. Hence, the appeal.

On behalf of the appellant, it was contended that there could be no
difference between the cases pending before the courts and cases pending
in appeal and, therefore, the classification made by the legislature was
unreasonable and violative of Article 14; and that the fortuitous reason C
of quick disposal of trials prior to 2-10-2001 should not determine the fate
of the accused in respect of the benefit of the amended provisions of the
amended Act.

Disposing of the appeal, the Court
D
HELD: 1.1. Merely because the classification has not been carried
o-ut with mathematical precision, or that there are some categories
distributed across the dividing line, is hardly a ground for holding that
the legislation falls foul of Article 14, as long as there is a broad discernible
classification based on intelligible differentia, which advances the object E
of the legislation, even if it be class legislation. As long as the extent of
over-inclusiveness or under-inclusiveness of the classification is marginal,
the constitutional vice of infringement of Article 14 would not infect the
legislation. [233-E, F]

1.2. In
the instant case, Parliament had two discernible objectives F
in bringing forth the Narcotic Drugs and Psychotropic Substances
(Amendment) Act, 2001. These are evident from the Statement of Objects
and Reasons and they are:

(1) Avoidance o( delay in trials; and
G
(2) Rationalization of sentence structure. [233-F-GJ

2.1. The accused, who had been tried and convicted before 2-10-2001
(i.e. as per the unamended Narcotic Drugs and Psychotropic Substances
Act, 1985) could possibly urge in the pending appeals, that as their trials
H
226 ' SUPREME COURT REPORTS [2004) 2 S.C.R.

A were not held in accordance with the amended provisions of the Act, their
trials must be held to be vitiated and that they should. be retried in
accordance with the amended provisions of the Act. This would certainly
defeat the first objective of avoiding delay in such trials. Hence, Parliament
removed th.is class of cases from the ambit of the amendment and excluded
them f~om the scope of the. Amending Act so that the pending appeals
B could be disposed of expeditiously by applying the unamended Act without
the possibility of reopening the concluded trials. 1234-A, B, q

2.2. The classification is very much rational and based on clearly
intelligible diffe~entia, which has a rational nexus with one of the objectives
C to be ac~ieved by the classification. 1234-E)

2.3. There is one exceptional situation, however, which may produce
an anomalous result. If the trial had just concluded before i-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 coming into force of the Amending Act, and the
D amendment would be applicable even in such cases. 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, it is not possible
to accept the contention that the proviso to Section 41 of the amending
Act is hit by Article 14. 1234-E-G)

E State of A.P. v. Nallamil/i Rami Reddy, [20011 7 SCC 708, relied on.

Ram Singh v. State of Haryana, (2003) I EFR 444 (P & H) (DB) and
Ramesh v. State of MP., (Writ Petition 537 of 2003 decided on 25-4-2003)
by High Court of M.P.@ Jabalpur, overruled .

F . State v. Gian Singh, [1999(9 SCC 312; Raton Lal v. State of Punjab,
AIR (1965) SC 444; T. Barai v. Henry Ah Hoe AIR (1983) SC ISO; K.S.
Paripoornan v. State of Kera/a, 11994) S SCC 593; R. Rajagopal Reddy v.
Padmini Chandrasekharan, [199512 SCC 630 and Smt. Dayawati v. Inderjit,
11966) 3 SCR 275, held inapplicable.

G Akhtari Bl (Smt.) v. State of M.P., 1200114SCC355, referred to.

Craies on Statute Law 7th Edn. pp. 387-388, referred to.

CRIMINAL APPELLATE JURISDICTlON : Criminal Appeal No.
1334 of 2002.
H
BASHEER@ N.P. BASHEER v. STATE OF KERALA [SRIKRISHNA, J.] 227

From the Judgment and Order dated 11.9.2001 of the Kerala High A
Court in Crl. A. No. 269 of 2001-C.

WITH

Crl. A. Nos. 1335-1337/2002 and 28-29, 708, 741 and 613 of 2003.
B
T.N. Singh, S.N. Singh, V.K. Singh, Ms. Asha Gopalan Nair, .N.M.
Popli for Ms B. Sunita Rao, Ms. Promila, Anil Aggarwal, A.K. Sangal, Ms.
B. Pasrija, Ms. Reena Sinha, Ms. Neelam and Shakil Ahmed Syed for the
Appellant.

R.N. Trivedi, Additional Solicitor General, Ms. Binu Tamta, U.U. Lalit, C
Ms. Sushma Suri, D.P. Singh, Vinay Garg, Ms. Avneet Toor, S. Prasad, A.
Kumar, R.G. Krishnan, S.N. Jha, K.R. Sasiprabhu, Ramesh Babu M.R. and
Ms. Vibha Datta Makhija for the Respondent.

The Judgment of the Court was delivered by
D
SRIKRISHNA, J. These appeals have been placed before us for
deciding a question of law as to the Constitutional validity of the proviso to
Sub-section 1 of Section 41 of the Narcotic Drugs and Psychotropic Substances
(Amendment) Act, 2001 (Act 9 of 2001).

Although, the facts and other contentions raised in each of these appeals
E
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 200 l, came into force. fn all these cases, the accused F
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 G
amendment coming into force from 2nd October, 2001.

The NDPS Act, l 985 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 H
228 SUPREME COURT REPORTS [2004] 2 S.C.R.

A drugs, were really cases of drug addicts and not traffickers in narcotic drugs
and psychotropic substances. As a result of the stringent bail provisions there
were hardly any cases where such persons could obtain bail. Thus, the trials
were pending for long periods and the accused languished in jail. Under
Section 27 of the Act of 1985, there was a marginal concession in favour of
B drug addicts by providing a reduced quantum of punishment if the accused
could prove that the narcotic drug or psychotropic substance in his possession
" was intended for his personal consumption and not for sale or distribution.

The provisions of NDPS Act, 1985 were amended by the Amending
Act 9 of2001, which rationalised the structure of punishment under the Act
C by providing graded sentences linked to the quantity of narcotic drug or
psychotropic substance in relation to which the offence was committed. The
application of strict bail provisions was also restricted -0nly to those offenders
who indulged in serious offences. The Statement of Objects and Reasons
appended to the Bill declares this intention thus:-

D "Statement of Objects and Reasons:- Amendment Act 9of2.001:- The
Narcotic Drugs and Psychotropic Substances Act, 1985 provides
deterren~ punishment for various offences relating to illicit trafficking
in narcotic drugs and psychotropic substances. Most of the offences
invite uniform punishment of minimum ten years rigorous
imprisonment which may extend up to twenty years. While the Act
E
envisages severe punishments for drug traffickers, it envisages
reformative approach towards addicts. In view of the general delay in
trial it has been found that the addicts pn{fer not to invoke the
provisions of the Act. The strict bail provisions under the Act add to
their misery. Therefore, it is proposed to rationalise the sentence
F structure so as to ensure that while drug traffickers who· traffic in
significant quantities of drugs are punished with deterrent sentences,
the addicts and those who commit less serious offences are sentenced
to less severe punishment. This requires rationalisation of the sentence
structure provided under the Act. It is also proposed to restrict the
application of strict bail provisions to those offenders who indulge in
G
serious offences."

As a consequence of the Amending Act coming into force on 2nd
October, 2001, the sentencing structure underwent a drastic change. The Act
introduced the concept of "commercial quantity" in relation to narcotic drugs
H or psychotropic substances by adding clause (viia) in Section 2. which defines
BASHEER@N.P. BASHEER v. STATE OF KERALA [SRI KRISHNA, J.] 229
this term as any quantity greater than a quantity specified by Central A
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 B
structure carried out by the Amending Act, 9 of 2001, ih Section 27. A
notification was issued on 9th October, 200 l, specifying in respect of 239
Narcotic Drugs and Psychotropic Substances, as to what would be "small
quantity" and " commercial quantity".

Apart from these provisions, the Act of 2001 introduced further
c
amendments by sub5tituting a new section for old Section 27 of the 1985
Act. A new provision, Section 328 was inserted by the Amending Act 9 of
2001, which prescribes the factors to be taken into account for imposing
higher than the minimum punishment. Sections 41 to 43, which are substituted
by the amendment, deal with the power of issuing warrant and authorization; D
power of entry, search, seizure and arrest without warrant or authorisation;
and power of seizure and arrest in public places. Significant changes were
made in section 54 of the Act, which deals with the presumption to be
applied in a trial under the Act arising from possession of illicit articles.
Section 41(1) 9fthe Amending Act, 9 of2001 is the section which detennines E
the !)pplication or exclusion of the amending provisions, and reads as under:-

"41. Application of this Act to pending cases. - (I) Notwithstanding
anything contained in sub-section (2) of section I, all cases pending
before the courts or under investigation at the commencement of this
Act shall be disposed of in accordance with the provisions of the p
principal Act as amended by this Act and accordingly, any person
found guilty of any offence punishable under the principal Act, as it
stood immediately before such commencement, shall be liable for a
punishment which is lesser than the punishment for which he is
otherwise liable at the date of the commission of such offence:
G
Provided that nothing in this Section shall apply to cases pending
in appeal".

By this Section, Parliament has declared its intention to apply the
amended provisions of the Act to: (a) All cases pending before the court on
2nd October, 200 l; (b) All cases under investigation as on that date; and H
230 SUPREME COURT REPORTS [2004] 2 S.C.R.

A provides that these categories of cases shall be disposed of in accordance -.
with the provisions of the 1985 Act as amended by the Act of 200 I. In other
words, the benefit of the rationalised sentencing structure would be applicable
to these categories. The proviso, however, makes an exception and excludes
the application of the rationalised sentencing structure ·to cases pending in
B appeal.
Learned counsel for the appellant in this group of appeals has urged
that, as a general rule, retrospective amendment of a criminal statute would
be hit by Article 20(1) of the Constitution subject to the exception that w\me
the amending statute mollifies the rigour of law, the benefit of the mollification
C shall be available to the accused, whose cases are pending on the date on
which the amending provision 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
D 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
E 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 judgments
of the Punjab and H01yana High Court in Ram Singh v. State of Hmyana,
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
F 537 of 2003 decided on 25.4.2003 by Division bench of Deepak Mishra and
A.K. Srivastava, JJ.)

Undoubtedly, the two judgments cited take the view that the proviso to
Section 41(1) of Act 9 of 2001 is hit by Article 14 of the Constitution and
have declared it to be unconstitlltional relying upon some judgments of this
G Court which we shall presently refer to. The correctness of these High Court
decisions is open to question.

In Raton Lal v. State of Punjab, AIR ( 1965) SC 444, it was unequivocally
declared by this Court that an ex postfacto criminal law, which only mollifies
H the rigour of l~w is not hit by Article 20( I) of the Constitution and th~t if a
BASHEER@N.P. BASHEER i·. STATE OF KERALA [SRIKRISHNA, J.) 23 J
particular law makes provision to that effect, though retrospective in operation, A
it would still be valid.

In T. Barai v. Henry Ah Hoe and Anr., AIR ( 1983) SC 150, this view
was reiterated and it was emphasized that if an amending Act reduces the
punishment for an offence, there is no reason why the accused should not
have the benefit of such reduced punishment. Relying on Craies on Statute B
Law (7th Edn., pp. 387-388), this Court (at p.157, para 22) said:

"The rule of beneficial construction requires that even ex post facto
law of such a type should be applied to mitigate the rigour of the law.
The principle is based both on sound reason and commonsense."
c
There is no doubt as to the correctness of the principle on which the
two judgments of the High Courts rely. All statutes must be interpreted as .
prospective in operation, unless retrospectivity is expressly declared by the
statute or to be inferred as the necessary intendment from the language used
in the statute. As far as the amendments introduced in the NDPS Act, 1985, D
by Act 9 of2001 are concerned, Section 41, in terms; says that the Amending
Act would apply to all cases pending before the Court or under investigation
on the date of commencement of the Amending Act. In other words, it is to
be applied retrospectively. If the Act had contained any provisions to the
detriment of the accused, then undoubtedly, it would have been hit by the
rule against post facto legislation contained in Article 20(1). However, we E
find that the amendments (at least the ones rationalising the sentencing
structure) are more beneficial to the accused and amount to mollification of
the rigour of the law. Consequently, despite retrospectivity, 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 F
application would not be hit by Article 20(1) of the Constitution.

Nothing much however, turns on this principle as far as the appeals
before us are concerned. Notwithstanding the application of the mollifying
provisions of the Act retrospective.ly, by the proviso to Section 41(1),
Parliament has expressly declared that the benefit of the retrospective G
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.
H
232 SUPREME COURT ·REPORTS [2004) 2 S.C.R.
...
A Counsel contend that there may be cases where the trial may have
concluded before 2nd October, 200 I; 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 have been
filed and these could be pending on the Jate on which the Amending Act
B came into force. It is argued that these fortuitous circumstances should not
determine the fate of the accused nor whether they should get the benefit of
the mollification of the rigour of the law. Counsel contends that persons
similarly situate would be subject to discriminative yardsticks of punishment
only because of fortuitous circumstances. According to them, the proviso
C hostilely discriminates against the cl~ss of cases pending in appeal, the
classification is unsupported by any rational basis or intelligible differentia
having•nexus with the objective of the amending Act. Thus, according to the
appellants, the proviso .to sub-section ( l) of Section 41 of Act 9 of 200 l,
infringes Article 14 and is, therefore, unconstitutional.

D In our view, the contention is without substance and ha~ to be rejected.

A careful scrutiny of sub-section I of Section 41 of Act 9 of 200 I
shows that all cases have been divided into three categories:

(a) Cases pending before the Trial Courts.
E (b) Cases pending investigation; and
(c) Cases where the trials have concluded and which are pending in
appeal.

Counsel contends that, barring cases, which are pending investigation,
F there is no rational basis for differentiating cases pending before the Court
and cases pending in appeal. They submit that a case pending in appeal is
nothing but an extension of the. trial and, therefore, the two categories of
cases (a) and (c) above are identically situated. The validity of this· reasoning
needs to be critically appraised.

G Before we do that, we may dispose of a subsidiary contention based on
·fortuitousness. In State of AP and Ors. v. Nallamilli Rami Reddy and Ors.,
[200 I] 7 SCC 708, a similar contention, urged to impugn a statutory provision
as infringing Article 14 of the Constitution, was dismissed by this Court in
the following words:· [at p.715, para 8)

H "What Article 14 of the Constitution prohibits is "class legislation"
'""°"'·

BASHEER@ N.P. BASHEER v. STATE OF KERALA [SRIKRISHNA, J.] 233

and not "classification for purpose of legislation". If the legislature A
reasonably classifies persons for legislative purposes so as to bring
them under a well defined class, it is not open to challenge on the
ground of denial of equal treatment that the law does not apply to
other persons. The test of permissible classification is twofold: (i)
that the classification must be founded on intelligible differentia which
distinguishes persons grouped together from others who are left out B
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 C
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." D
We think that these observations are equally applicable to the cases
before us.

Merely because the classification has not been carried out with
mathematical precision, or that there are some categories distributed across E
the dividing line, is hardly a ground for holding that the legislation falls foul
of A1ticle 14, as long as there is broad discernible classification based on
intelligible diffe.rentia, which advance the object of the legislation, even if it
be class legislation. As long as the extent of over- inclusiveness or under-
inc;lusiveness of the classification is marginal, the Constitutional vice of p
infringement of Article 14 would not infect the legislation.
~.. l .,

In the case before us, Parliament had two discernible objectives in
bringing forth the amendment of 200 I. These are evident from the Statement
of Objects and Reasons and they are:
G
(l) Avoidance of delay in trials; and

(2) Rationalisation of sentence structure.

Jnasmuch as Act 9 of 200 l introduced significant and material changes
in the parent.Act, which would affect the trial itself, application of the amended H
234 SUPREME COURT REPORTS [2004) 2 S.C.R.

A 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,
foading to retrials, thereby defeating at least the first objective of avoiding
delay in trials. The 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
B . appeals, that as their trials were not held in accordance with the amended
' provisions of the Act, their trials must be held to be vitiated and that they
should be re-tried 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 and in which appeals
were filed prior to the date of the Amending Act coming into force. This
C would certainly defeat the first objective of avoiding delay in such trials.
Hence,_ Parliament appears to have removed this class of cases from the ambit
of the amendments and excluded them from the scope of the Amending Act
so that the pending appeals could be disposed off expeditiously by applying
the unamended Act without the possibility of reopening the concluded trials.

D Thus, in our view, the Rubicon indicated by Parliament is the conclusion
of the Trial and pendency 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
E 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 2.10.200 I, but the
F appeal is filed after 2.10.200 I, 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
G to accept the contention that the proviso to Section 41 of the amending Act
is hit by Article 14.

We are also unable to agree with the view taken in the judgments of
the Division Benches of Punjab and Haryana High Court and the Madhya
H Pradesh High Court, which have been cited before us. In our view, these
BASHEER@N.P. BASHEER v. STATE OF KERALA [SRIKRISHNA, J.] 235

judgments have proceeded on an erroneous basis on· the constitutional issue A
and have declared the relevant proviso to be unconstitutional. The two
judgments are, therefore, overruled. The reliance upon the judgment of this
Court in State v. Gian Singh, [1999] 9 SCC 312, Ratan Lal (supra) and T.
Barai (supra) is of no avail to the appellants for these cases merely emphasise
the permissibility of ex post facto legislation for reducing the severity of the B
punishment.

The appellants relied upon the observations of this Court in Akhtari Bl
(Smt.) v. State of M.P., [2001] 4 SCC 355, in which this Court has emphasize~
that to have speedy justice is a Fundamental Right that flows from Article 21
of the Constitution and that prolonged delay in disposal of the trials and C
thereafter in appeals in criminal cases, for no fault of the accused, confers a
right upon him to apply for bail. There can be no dissent with this principle,
which in fact forms the underpinning of the legislation under attack before
us.

The learned Additional Solicitor General also relied upon the judgment D
of this Court in Gian Singh (supra). In our view, this authority does not have
a bearing on the issue debated before us for two reasons namely:

(a) First, the Amending Act there itself had Section 25, which was
given overriding effect over anything that had been done under the
previous Act; E
(b) Secondly, this authority also emphasises the principle of extending
benevolent provision of the Amending Act to pending cases, since
that was the intention of Parliament.

Learned Solicitor General also referred to KS. Paripoornan v. State of p
Kera/a and Ors., [1994] 5 SCC 593, R. Rajagopal Reddy (Dead) by LRs &
Ors. v. Pad°mini Chandrasekharan (Dead) by LRs, [1995] 2 SCC 630 and
Smt. Dayawaii & Anr. v. lnderjit and Ors., [ 1966] 3 SCR 275. In our view,
these cases are of no aid to us, as they neither dealt with retrospective
application of a criminal statute, nor with the constitutional validity thereof.
We do not propose to examine them in detail for these reasons. G
In the result, we are of the view that the proviso to Section 41 (I) of
the Amending Act 9 of 2001 is Constitutional and is not hit by Article 14.
Consequently, in all cases, in which the trials had concluded and appeals
were pending on 2.10.2001, when Amending Act 9of2001 came into force, H
236 SUPREME COURT REPORTS [2004) 2 S.C.R.

A the amendments introduced by the Amending Act 9 of 2001 would not be
applicable and they would have to be disposed off in accordance with the
NDPS Act, 1985, as it stood before 2nd October, 2001. Since there are other.
contentions of law and fact raised in each of these· cases, they-would have to
be placed before the appropriate Benches for decision and disposal in
accordance with the law.
B
CRIMINAL APPEAL Nos. 708 & 741 of 2003

A perusal of the facts narrated in the appeal memoranda does not
indicate that in these cases, the trials had concluded and appeals had been
C filed before 2.10.200 I. It is not clear. whether these cases would really fall
under the proviso to Section 41 (I) of Act 9 of 200 I. We are, therefore, not
making any orders in these two cases.

These cases are to be placed before the appropriate Bench for decision
and disposal in accordance with the law in the light of our judgment in Crl.
D Appeal No.1334 of 2002 and other connected matters.

The Appeals stand disposed of accordingly.

v.s.s. Appeals disposed of.