V.B. Bansal, J.
(1) The short question for consideration in this order is as to whether the provisions contained in Section 37 of the Narcotic Drugs and Psychotropic Substances Act (as amended) (hereinafter referred to as the Act) would be applicable to applications for bail in cases prior to the coming into force of this amended section.
(2) The Act came into force on 14th November. 1985 and Section 37 at that time was as under :- Offences to be cognizable
'NOTWITHSTANDING anything contained in Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act, shall be cognizable.'
(3) This Act was subsequently amended vide Act No. 2 of 1989 and Section 37 was substituted by the following section : Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure. 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable ; (b) no person accused of an offence punishable for a term of imprisonment ot' five years or more under this Act shall be released on bail or on his own bond unless- (i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds turn believing that be is not guilty to such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of Subsection (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.
(4) S/SHRI J.C.Sawhney, I.U.Khan and Harjinder Singh have made submissions on behalf of accused while Shri J.S.Arora made submissions on behalf of the respondent.
(5) Learned counsel turn the petitioner have submitted that the amendment is of a penal nature and will not be applied retrospectively. It has also been submitted that there is a vested right in the petitioner to apply for bail and, thus, the question with regard to the grant of bail has to be considered in the light of the provisions in existence at the time at which the offence is alleged to have been committed. It has, thus, been submitted that the safeguards provided under the 1985 Act cannot be taken away with retrospective effect under Section 37 as amended. It has further been submitted that it is cardinal principle of law that retrospective effect shall be given only when the intention is made clear in the Act itself otherwise the amended sections have to be effective only prospectively. Another submission of learned counsel for the petitioner has been that there is a complete bar to the effect that no person shall be convicted to any offence except for violation of law in force at the time of the commission of the act charged as an offence not be subjected to a penalty greater that which might have been inflicted under the law in force at the time of the commission of the act charged as an offence nor be subjected to a penalty greater that which might have been, inflicted under the law in force at the time of the commission of the offence. It has. thus, been submitted that to deprive the petitioner of his right of bail by making stringent conditions would tantamount to imposing a penalty greater than that which, could be inflicted under the law as in force at the time of (he commission of the offence which is not permissible under Article 20(1) of the Constitution of India.
(6) Learned counsel for the respondent has, on the other hand, submitted that there has not been any material change in the substantive law and that only amendment made in Section 37 of the Act has been that more conditions have been imposed to be complied with before a person could be entitled to be released on bail. He has also submitted that this being only a procedural amendment has to be made applicable to all the applications moved after the coming into force of the amended sections regardless of the time at which the offence was committed. He has. thus, submitted that no penalty as such is being imposed upon the petitioner and so there is no violation of Article 20(1) of the Constitution of India and that the law is act being made applicable with retrospective effect. He has further submitted that the retrospective effect could be only if the cases in which bail has already been allowed were to be reviewed and additional conditions were to be fulfillled even by the persons who have already been enlarged on bail. This being not the position under the Act this amendment is being applied prospectively and there is no bar to the applications for bail being considered in the light of the provisions contained in Section 37 of the Act.
(7) It is the fundamental rule of law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication The rule regarding retrospective operation has been enunciated by Wright J. in re ALTHUMNEY. 0898) 2 Queen's. Bench 547 (551) in the 'following words- 'Perhaps no rule of construction is more firmly established than this- that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards mailer of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.'
(8) The statute is said to be deemed to be retrospective; which lakes away or impairs any vested right acquired under existing laws or creates a new obligation or imposes a new duly or attaches a new disability in respect of transactions of considerations already past. Reference in this regard can be made to Craies on statute law 7th Edition 38.
(9) In Mahadeola Kanodia v. The Administrator General of West Bengal : [1960]3SCR578 it has been held that the principles that have to be applied for interpretation of statutory amendments taking away substantive rights are well established. The first of these is that statutory provisions creating substantive tight or taking away substantive right are ordinarily prospective. they are retrospective only if by express words or by necessary implication The second rule is that the intention of the Legislature has always to be gathered from the words used by it, giving to the words their plain, normal grammatical meaning. The third rule is that if in any legislation, the general object of which is to benefit a particular class of persons, any provision is ambiguous so that it is capable of two meanings, one which would preserve the benefit and another which would take it away, the meaning which preserves it should be adopted. The fourth rule is that if the strict grammatical interpretation gives rise to an absurdity or inconsistency such interpretation should be discarded and an interpretation which will give effect to the purpose the legislature may reasonably be considered to have and will be put on the words, if necessary, even by modification of the language used.
(10) Section 6(c) of the General Clauses Act, 1897 provides that where this Act, or any Central Act or Regulation made after the commencement of this Act. repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed.
(11) Reliance was placed on a number of cases but it is not necessary to refer to all of them. I would refer io only a lew cases which, in my view, are important to be referred to. In case Shri Vijayalakshmi Rice Mills. New Contractors Co. etc v. State of Andhra Pradesh : [1976]3SCR775 the question for consideration was as to whether the petitioners were to be paid at the enhanced rate even in respect of the supplies made in January/February 1964 of rice according to the rates specified in the Rice (Andhra Pradesh) Price Control Order (1963) or at the rate amended in 1964. It was held that it is a well recognised rule of interpretation that in the absence of expressed words or appropriate language from which retrospectively may be inferred a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statute should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force It was, thus, held that for the supplies which had been effected prior to the rate amended in 1964 the payment was to be made at the rate prior to the amendment.
(12) In case Kapur Chand v. B.S. Grewal, Financial Commissioner. Punjab, Chandigarh and others : [1965]2SCR36 Section 9(l)(ii) of the Punjab Security of Land Tenures Act, 195 3 provided, inter alias that no land owner is competent to eject a tenant except when such tenant fails to pay rent regularly without sufficient cause. Section 14A was inducted in the Act in 1955 laying down the procedure and enables a land owner to apply for the eviction of his tenant on any of the grounds stated in Section 9. The conduct spoken of in Section 9(i)(ii) of the tenant prior to the coming into force of the new Section 14A can be taken into account. It was further observed that no doubt a statute must be applied prospectively but a statute is not applied retrospectively because a part of the requisites for its action is drawn from a moment of time prior to its passing. Clause (ii) of Section 9(1) makes a particular conduct the ground for an application for eviction. The necessary condition for the application of Section 9(l)(ii) may commence even before the Act came into force and past conduct, which is as relevant for the clause as conduct after the coming into force of the Act. cannot bs overlooked. In this judgment it was, thus clearly held that though the Act was prospective but the conduct of the tenant about the title prior to the amendment could be taken into consideration.
(13) It is thus, clear that where an amendment affects vested right the amendment would operate prospectively unless it is expressly made retrospectively or its retrospective operation follows as a matter of necessary implication. If the legislature intends that any amendment should have retrospective operation it must be reflected in amendment itself.
(14) The short question now for consideration is as to whether the amendment, in fact is being applied with retrospective effect and whether by way of this amendment the petitioner is being subjected to a penalty greater than that which may have been inflicted under the law in force at the time of the commission of the offence. In case Rao Shiv Bahadur Singh and another v. The State of Vindhya Pradesh : 1954CriLJ1480 it has been held that an ordinance which makes a provision to be deemed to be in existence with retrospective date is vocative of Article 20(1) of the Constitution of India and so it cannot be sustained. It has also been held that in Article 20 of the Indian Constitution the language used is in much wider term and what is prohibited is the conviction of a person or his subjection to penalty under ex post facto laws. The prohibition under the Article is not confined to the passing or the validity of the laws but extends to the conviction or the sentence and is based on its character as an ex post facto Saw. It has also been observed that there is no bar for the trial under the amended procedure and that trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional. In case Mohari Lall and another v. The Corporation of Calcutta : AIR1953Cal561 it was held that the sentence of fine of Rs. 1000.00 imposed by the magistrate under the New Calcutta Municipal Act was not justified in view of Article 20(1) of the Constitution of India, as the sentence which could be awarded could not be more that what was provided for the offence at the time when it was committed. In these circumstances, the amount of tine was reduced to Rs. 500.00 . Similarly, in case Kedar Nath Bujoria v The State of West Bengal 1954(5) Scr 30 it was held that the fine of Rs. 50,000.00 inflicted on the first appellant was in contravention of Article 20 of the Constitution which provides, infer alia, that no person shall be subjected to penalty greater than that which might have been inflicted. It was also held that the offence was committed by the appellant in 1947 and so the enhanced amount of fine could not be imposed and, thus it was held that the tine could not stand to the extent of Rs 47550.00 and to that extent the amount of tine was set aside.
(15) The amended Section 37 of the Act came into force on 29th May, 1990. A bare reading of Section 37 makes it abundantly clear that it only relates to procedure and does not create any substantive offence. Law presumes that every accused shall be innocent unless proved to be guilty. Neither Act nor Section 37 indicates any attempt to depart from the well recognised principles that an accused is presumed to be an innocent till held to be guilly. However, the presumption of innocence is not relevant for the grant of bail. There can possibly no two opinions that the rights of a criminal have to be zealously guarded as the cause of public justice. Even prior to the amendment of Section 37 the offences were cognizable and in view of Section 437 to Section 439 of [he Code of Criminal Procedure they were non-bailable but the sessions court or the High Court was authorised to release a person on bail and could impose any conditions which it considered necessary. It was, however, observed in the statements and reasons for amendment of the Act that it provided deterrent punishment for drug traffic ing offences and that even though the major offences were non-bailable by 12 virtue of the level of punishment, on technical grounds drug offenders were released on bail It was with a view to check the release of the offenders easily and to provide turn certain difficulties faced in the enforcement of the Act. the need to amend the law including Section 37 was felt There can possibly be no dispute that it is only a procedure which has been provided governing the grant of bail. It is not a substantive right nor bail is refused by way of punishment.
(16) Learned counsel for the respondent is right in his submission that the purpose of keeping a person in jail is only to prevent him from repeating the same offence which is proven to be hazardous for the society. Intention of the amendment is not to punish an accused but to protect the larger interest of publie. I am, thus, clearly of the view that bail is at the most a matter of procedural privilege and not accrued right unless it is granted The grant of bail to a person accused of an offence is a statutory right under the Code in given circumstances In these circumstances, it cannot be said that any vested right of the petitioner who is altered to have committed an offence prior to 29th May, 1989 is being taken away by applying to him the amended provisions of Section 37 while considering the application for the grant of bail. The cases of persons who have already been allowed bail are not being reviewed and, thus, it cannot be said that the provisions of this Act are being applied with retrospective effect.
(17) Learned counsel for the petitioner has submitted that the petitioner has a right to go the superior tribunal, i e. the High Court and such right cannot be taken away unless statute provide so in clear terms. Reliance has also been placed on the case Maru Ram v. Union of India and Others : 1980CriLJ1440 . Section 433A was inserted in the Code of Criminal Procedure by the Cr.P C. Amendment Act, 1978. This section reads as under :- Sec. 433A 'Notwithstanding anything contained in Section 432 where a sentence of imprisonment for life is imposed on conviction of a person turn an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
(18) The question for consideration was as to whether the persons who bad been convicted prior to this amendment were. also to be governed by this provision or not. It was held that ordinarily a criminal legislation must be so interpreted as to speak futuristically It was also observed that there was no vested light for any convict who has received a judicial sentence to contend that the penalty should be softened and the law which comples the penalty to be carried out in full could not apply to him, it is the function of the court to adopt a herbal construction when dealing a criminal statute in the ordinary course of things, It was also observed keeping in view the word used by the legislature this provision would bea applicable only to the persons who are convicted after the aforesaid amendment came into force and would not apply to the persons already convicted and, thus he would continue to enjoy the benefits, which have accrued to him before Section 433A entered Chapter 32 of the Code. This judgment also, in my view, cannot be of any help to the respondent and it has also been made applicable only to the cases in which the order is to be passed after this provision came into force. Amended Section 37 has not taken away the right of an accused to approach the High Court for the relief of bail.
(19) Considering all the facts and circumstances, I am clearly of the view that Section 37 as amended is only procedural in nature and has no taken away any vested right of a person nor has it imposed any or penalties and, thus, while considering application for bail in cases prior to 29th May, 1989 the provisions contained in Section 37 of the N.D.P.S. Act (As Amended) shall have to be applied.