Pradip Kumar Biswas, J.:— This is an application under section 401 read with section 482 of the Code of Criminal Procedure filed at the instance of one Paresh Singh, petitioner herein who is in jail seeking to set aside the impugned order dated 16.2.2002 and/or quashing the same.
2. The short facts leading to the filing of this revisional application are as under:—
The petitioner herein was arrested in connection with the aforesaid case from his house on 25.7.01 by N.C.B officials and he was produced before the learned court below on 26.7.01
The allegation that was levelled against him was that 181.6 Kgs. of ganja was seized from premises at village Jagindranagar Sajerhat P.S Ghola, Dist: 24 Pgas (N) at about 6 hrs on 25.7.01 and the said premisses belonged to the present petitioner.
It was further alleged that the petitioner admitted that a portion of the said recovered ganja was supplied to him by one Nand Kishore of Imphal, Manipur and in consequence thereof a complaint was filed alleging that the accused petitioner has contravened the provisions of section 8 of N.D.P.S Act, 1985 as amended making him liable for prosecution under section 20(b)(i) of the said Act.
3. It was further alleged that on 16.1.02 charge was framed against the present petitioner under section 20(b)(ii)(c) of the N.D.P.S Act, and dates were fixed on 26.3.02 and 27.3.02 for evidence. It has been further alleged that the ld. court below erred in law in framing charge against the present petitioner under section 20(b)(ii)(c) of the N.D.P.S Act since the petitioner was arrested on 25.7.01 in connection with an offence under section 20(b)(i) of the N.D.P.S Act and the learned court below did not at all consider that Act No. 9 of 2001 dated 9.5.2001 has been given effect to on and from 19.10.2001 and as such the impugned charge under section 20(b)(ii)(c) of the N.D.P.S Act framed against the present petitioner is liable to be quashed.
It has also been contended on behalf of the petitioner that the complaint in this case was initially submitted under section 20(b)(i) of the N.D.P.S Act and taking advantage of the amended Act, as aforesaid, neither the prosecution nor the learned court can proceed to frame charge under section 20(b)(ii)(c) of the N.D.P.S Act by giving retrospective operation to the aforesaid amendment. Hence, he has come up for quashing of the aforesaid charge and/or setting aside the aforesaid charge.
4. I have heard the learned counsel at length. Mr. S.S Roy, learned counsel appearing for the petitioner, drawing my attention to the provision of section 41(2) of the N.D.P.S (Amendment) Act, 2001 has submitted before me that in this case by filing a petition of complaint, it was alleged that on 25.7.01 offence complained of was committed by the present petitioner Paresh Singh and in connection with the aforesaid offence, complaint was submitted by him alleging that the accused has contravened the provisions of section 8 of the N.D.P.S Act, 1985 as amended making him liable for prosecution under section 20(b)(i) of the said Act.
Admittedly, the aforesaid amendment Act came into force in the month of October, 2001 by categorising offences including the offences involving commercial quantity which was, however, not in the principal Act prior to this amendment Act, 2001.
He has, therefore, submitted that as per the provisions made in section 41(2) of the aforesaid amendment Act, 2001 it has been clearly clarified that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force. Relying upon the aforesaid provisions of law, he has submitted that it is absolutely clear that earlier there being no categorisation of the offence involving commercial quantity for which now enhanced punishment has been prescribed, no charge could be framed by the trial court in respect of offences punishable under section 20(b)(ii)(c) of the N.D.P.S Act and plainly the learned Trial Judge should have framed a charge under section 20(b)(i) of the said Act for which complaint petition was filed earlier.
In this connection, he has placed his reliance upon a decision reported in A.I.R 1983 SC 150 in the case of T. Barai v. Henry Ah Hoe, wherein it has been clearly laid down that the prohibition contained in Article 20(1) is that 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 offence prohibits nor shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
It was further held in the aforesaid judgement that the rule, is, however, subject to the limitation contained in Article 20(1) against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act i.e, when the essential ingredients of the two offences are different.
5. On the aforesaid premises, Sri Roy has contended that the charge as framed in this case by the Trial Judge under section 20(b)(ii)(c) of the N.D.P.S Act is not sustainable in law and should, therefore, be quashed.
6. In resisting the claim of the petitioner, it was contended by Mr. H. Dey, appearing for the opposite party/N.C.B that in the petition of complaint there was also allegation against the present petitioner for being engaged in business and by virtue of that they are entitled to proceed against the present petitioner under the provisions of the amended Act, wherein specific categorisation of the offences involving commercial quantity has been introduced. In this connection, he has placed his reliance on a decision reported in A.I.R 1990 SC 209 in the case of Gurbachan Singh v. Satpal Singh I have considered the submissions made by the learned counsel, appearing for the opposite party, Narcotic Bureau, but I am unable to agree with the contentions of Sri Dey, appearing for the aforesaid opposite party inasmuch as per the provisions of section 41(2) of the amendment Act of 2001, it has been clearly clarified that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force and specially in view of the provisions of Article 20(1) of the Indian Constitution.
7. I have also gone through the decision reported in A.I.R 1990 SC 209 (supra) with meticulous care and in my humble opinion, the aforesaid decision does not come to any aid to the opposite party, rather it helps the petitioner of this case, as it has been clearly laid down in the aforesaid decision that the provision of section 113A of the Indian Evidence Act do not creates any new offence and as such it does not create any substantial right, but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case.
The ratio decided in the aforesaid case taken together with the ratio decided in the decision reported in A.I.R 1983 SC 150 (supra) lead me to conclude that since by this amendment, provision was made for greater punishment by changing the essential ingredients of the offence from the earlier one and the provisions of the amendment Act has created a new offence, for that reason, therefore, no retrospective operation can be given to the said amendment by way of framing charge as per the amended Act under section 20(b)(ii)(c) of the Act. So, framing of charge under section 20(b)(ii)(c) of the N.D.P.S Act against this petitioner cannot sustain at all.
In view of what I have stated above, I hold that the charge framed under section 20(b)(ii)(c) therefore, cannot stand and as such it should be quashed and accordingly, the same is quashed.
8. Liberty, is, however, given to the trial court to frame charge under section 20(b)(i) of the N.D.P.S Act for proceeding with this trial against this accused petitioner after giving him an opportunity of being heard.
9. Let it also be made clear that the trial of this case should proceed as expeditiously as possible.
With this observation, this revisional application stands disposed of.
Let a copy of this order be forwarded to the concerned court for information and necessary compliance.
Urgent xerox certified copies, if applied for, be made available to the parties, as expeditiously as possible.
Revisional applicaiton dispossed of with observation.
M.G
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