Debiprasad Sengupta, J.
1. Present reference is placed before us for deciding a question of law as to the constitutional validity of Narcotic Drugs & Psychotropic Substances (Amendment) Act of 2001 (Act 9 of 2001), specially the provisions by which the sentence structure was mollified.
2. In course of hearing of a bail application, the Division Bench of this Court expressed its views that 'the object of inflicting deterrent punishment upon the drug traffickers, who traffic in 'significant quantity', can never be achieved if the peddlers sharing common intention and indulging in selling and possessing heroin are let loose with a minimal punishment for six months coupled with the immunity from a pre-trial imprisonment'.
3. The Division Bench was of the view that a substantial question of law as to the Constitutionality of the amendments introduced to NDPS Act, 1985, by the Amendment Act of 2001, has arisen in this case, which is of general public importance affecting the rights of the parties hereto and the society at large. The matter was referred to the Hon'ble Chief Justice and accordingly this Bench was constituted to decide the point.
4. Mr. Balai Chandra Roy, learned Advocate General raises a preliminary objection and submits that the present reference to this Larger Bench is not maintainable. Referring to the provision of Part-II, Chapter - VII, Rule-1 of Appellate Side Rules it is submitted before us that such reference can be made only when one Division Bench differs from the other Division Bench or a Special Division Bench on a point of law. Since there is no such difference of opinion between the two Division Benches, present reference to this larger Bench does not he. Part-II, Chapter - VII, Rule -1 provides as follows:
Whenever one Division Bench shall differ from any other Division Bench or a Special Division Bench constituted before the 1' April, 1953 upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench, unless the point has since been decided by a pre-Constitution decision of the Judicial Committee of the Privy Council or of the Federal Court of India or by a decision of the Supreme Court of India or of a Full Bench of this Court.
5. Mr. Banerjee, learned Senior Counsel appearing on behalf of the Union of India accepts the submission made by the learned Advocate General and submits that such reference is not competent in view of the Appellate Side Rules referred to above.
6. Since a preliminary point is raised before us, which relates to the competence of this Bench to decide the matter, the same should be decided by us at the very outset.
7. In the Division Bench judgment by which the present reference is made, we find that the present reference is made under Chapter- II, Rule 1 (ii) of the Appellate Side Rules, which also applies to criminal matters, and in this respect the Division Bench referred to Full Bench judgment reported in : AIR1975Cal450 (Tara Dutta v. State). In the said judgment it was held by the Full Bench of this Court that even in the absence in Rule 9 of Chapter - II of Appellate Side Rules of a provision corresponding to proviso (ii) to Rule 1, which relates to civil matters, the Chief Justice has inherent power to refer any matter to a Bench of three-Judges when the matter is of some importance. The Chief Justice can exercise his inherent power to constitute larger Benches in criminal matters in situations and circumstances envisaged in civil matters by proviso (ii) to Rule -1, Chapter- II of the Appellate Side Rules.
8. The 'Referee Bench' had been categorical enough to point out the view expressed by a Full Bench of this Court in the case of Tara Dutta (supra). Referee Bench had invoked the procedure enumerated in Part-1, Chapter - II, Rule 1 (ii) of the Appellate Side Rules of this Court which runs as follows:
Part-I, Chapter-II, Rule -1 (ii):
1. A Division Bench for the hearing of appeals from decrees or orders of the subordinate Civil Courts shall consist of two or more Judges as the Chief Justice may think fit.
****************************************************(ii) Provided also that, on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a Special Division Bench, to consist of three or more Judges, for the hearing of any particular appeal, or any particular question of law arising in an appeal, or of any other matter.
9. In the case of Tara Dutta (supra), the aforesaid Rules, their implications and inherent power of the Hon'ble Chief Justice in the constitution of various Benches of this Court including Special Bench or Full Bench, came for consideration. Sankar Prasad Mitra, CJ (as His Lordship then was) speaking for the Full Bench made a detailed discussion of the various events and orders passed by different Benches (as were then prevalent) of this Court leading to the constitution of the said Full Bench headed by His Lordship.
10. In paragraph 24 of the said judgment (Tara Dutta v. State) it was held as follows:
It is clear that in civil matters the Chief Justice whenever he thinks fit can constitute a Special Division Bench consisting of three or more Judges for the hearing of any matter. And a Special Division Bench so constituted shall be deemed to be a Full Bench. The question is whether the Chief Justice has the same or similar powers with respect to criminal matters. This question has been considered by a Full Bench of this Court as well as by the Supreme Court to which we shall presently advert.
11. In construing the 'Rules that were concerned with, His Lordship explained the view earlier expressed by this Court in the case of Saurendra Mohan v. Saroj Ranjan : AIR1961Cal461 , wherein it was held in paragraph 7 of the judgment as follows:
Now, it is true in Rule 9 of the Appellate Side Rules, Chapter - II, there is no express provision corresponding to the proviso (ii) to Rule 1 which relates to civil matters. But this does not, in our opinion, take away the inherent power of the learned Chief Justice to refer any matter to a Bench of three Judges when the matter is of some importance.
12. The Full Bench judgment referred to above recognized the inherent power of the Chief Justice to constitute in a criminal matter a Larger Bench either on his own initiative or on his attention being drawn to the fact that the matter was of importance. The Pull Bench case went up on appeal to the Supreme Court and judgment of the Supreme Court is reported in : AIR1962SC876 (Pramathanath v. Saroj Ranjan). The Pull Bench judgment of this Court received concurrence of the Apex Court and it was held by the Hon'ble Apex Court that absence of a proviso to Rule 9 in Chapter- II corresponding to the proviso (ii) to Rule 1 can not take away the inherent power of the Chief Justice to refer any matter to a Bench of three Judges. It was held that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances.
13. In Full Bench judgment in the case of Tara Dutta (supra), it was held by this Court in paragraph 29 as follows:
The Pull Bench and the Supreme Court decisions referred to above leave us in no doubt that this larger Bench constituted in the exercise of the Chief Justice's inherent power can finally set at rest the controversies which have arisen in the matter so far as this Court is concerned. The Pull Bench has expressly stated that even in the absence in Rule 9 of Chapter II Appellate Side Rules of a provision corresponding to proviso (ii) to Rule 1 which relates to civil matters, the Chief Justice has inherent power to refer any matter to a Bench of three Judges when the matter is of some importance. The Supreme Court has expressly agreed with this view. Both the Pull Bench and the Supreme Court have made it clear in our opinion that the Chief Justice can exercise his inherent power to constitute Larger Benches in criminal matters in situations or circumstances envisaged in civil matters by proviso (ii) to Rule 1 Chapter II of the Appellate Side Rules.
14. The 'Special Circumstances' as referred to by S.P. Mitra, CJ. would involve a case where the attention of the Chief Justice is drawn by a Bench of this Court to a 'matter of importance' and recommending that the case should be referred to a larger Bench. This is exactly what has been done by the 'Referee Bench' in the present case and no fault can be found with the course of action pursued by the said Bench. It is not at all correct to say that only in the event of a difference of opinion between the Benches of this Court on any issue, the matter can be referred to a Larger Bench constituted by the Hon'ble Chief Justice. The earlier decision of the Pull Bench of this Court and the Hon'ble Supreme Court have made it clear that the Chief Justice can exercise his inherent power to constitute larger Benches in criminal matter in 'special circumstances'.
15. We are bound by the decision of the Pull Bench in Tara Dutta's case, which was judicially confirmed by the Hon'ble Apex Court in the case of Pramathanath v. Saroj Ranjan (supra). To maintain judicial discipline and propriety we cannot accept the contention raised by Mr. Roy, learned Advocate General as to the competence of this Bench and accordingly the same is rejected.
16. Now we proceed to deal with the merits.
17. Mr. Roy, learned Advocate General submits that the Amendment Act, 2001 came into force on 2nd October, 2001 and there was a remarkable change in the sentence structure. A new concept of 'commercial quantity' and 'small quantity' was introduced by adding Clauses (viia) and (xxiiia) in Section 2 of the Act. Under the rationalized sentencing structure in the Amendment Act, 2001 punishment varies depending upon whether the quantity of contraband article is 'small quantity', 'commercial quantity' or the quantity in between. This is the effect of rationalization of sentencing structure provided in the Act of 2001.
18. Mr. Roy, referring to the Statement of Objects and Reasons of the Amendment Act of 2001, submits that Parliament had two objectives in bringing forth the Amendment Act of 2001, which is evident from the Statement of Objects and Reasons. Two objectives are (1) Avoidance of delay in trial and (2) Rationalization of sentence structure. It is the contention of the learned Advocate General that the Amendment Act 9 of 2001, especially those by which the sentence structure has been rationalized, are beneficial to the accused and amount to mollification of the rigour of law and such amendment can never be said to be unconstitutional and the said Amendment Act of 2001 is quite in conformity with the Statement of Objects and Reasons.
19. Mr. Roy relies upon a judgment of the Hon'ble Supreme Court reported in : 1983CriLJ164 (T. Barai v. Henry Ah Hoe and Anr.). In the said judgment it was held by the Apex Court in paragraph 22 as follows:
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.
20. In paragraph 25 of the said judgment it was held by the Apex Court as follows:
It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication. In Michell v. Brown 1858(120) ER 909, 912 Lord Campbell put the matter thus:
It is well-settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute; See also Smith v. Benabo, 1937(1) All ER 523.In Regina v. Youle 1861(158) ER 311 315-316 Martin, B. said in the oft-quoted passage:If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act.
21. Relying upon the aforesaid judgment it is submitted by the learned Advocate General that the Central Amendment Act having dealt with the same offence and having provided a reduced punishment, the accused must have the benefit of the reduced punishment.
22. The learned Advocate General further submits that what is prohibited in Article 14 of the Constitution of India is 'class legislation' and not 'classification for the purpose of legislation.' A classification cannot be said to be unjustified and unconstitutional unless it is patently arbitrary. If there is equality and uniformity in each group, the law will not be discriminatory.
23. The learned Advocate General also relies upon a judgment of the Hon'ble Supreme Court reported in 2004 AIR SCW 932 (Basheer v. State of Kerala). Constitutional validity of the proviso to Sub-section (1) of Section 41 of the Amendment Act of 2001 came up for consideration before the Hon'ble Apex Court. It was held that in all cases, in which trials had concluded and appeals were pending on 2.10.2001 (date on which the amending Act of 2001 came into force), the amendment introduced by the Amendment Act of 2001 shall not be applicable and such cases are to be disposed of in accordance with the provisions of the Act of 1985. In the aforesaid judgment reference was made to the case of Ratan Lal v. State of Punjab, reported in AIR 1985 SC 444, wherein it was held by the Apex Court that 'an ex post facto criminal law, which only mollifies the rigor of law, is not hit by Article 20(1) of the Constitution and that if a particular law makes provision to that effect, though retrospective in operation, it would still be valid.' This view was also reiterated in the case of T. Barai (supra) and it was emphasized that if an amendment Act reduces the punishment for an offence, there is no reason as to why the accused should not get the benefit of such reduced punishment.
24. It is the contention of Mr. Roy, learned Advocate General that the amendments of the Principal Act in 2001 have an in-depth look and consideration of different kinds of offences, and regard being paid to the degree of severity of the offences, penalty has been prescribed. Such prescription instead of affecting the rights of the parties and society, seeks to maintain a balance between the nature of the offence and degree of punishment. The Amendment Act of 2001, specially those by which the sentence of structure has been rationalized, are beneficial to the accused and amount to mollification of the rigor of law and such amendment can never be said to be unconstitutional.
25. Mr. Shibdas Banerjee, learned Senior Counsel appearing on behalf of the Union of India accepts the submission made by the learned Advocate General. Mr. Banerjee mainly relies upon the judgment of the Hon'ble Supreme Court in the case of Basheer v. State of Kerala (supra). Mr. Banerjee submits that from the Statement of Objects and Reasons, it will be evident that the Parliament had two objectives in bringing forth the Amendment Act of 2001, i.e. (1) speedy disposal of cases and (2) rationalization of sentence structure. The Hon'ble Apex Court in the case of Basheer (supra) had used the expression 'However, we find that amendments, (at least the ones rationalizing the sentencing structure) are more beneficial to the accused, and amount of mollification of the rigors of the law'. Such amendment, according to Mr. Banerjee, must be held to be rational.
26. Mr. Banerjee refers to paragraphs 18 and 20 of the judgment in the case of Basheer (supra), which are as follows:
18. Before we do that,'we may dispose of a subsidiary contention based on fortuitousness. In State of A.P. and Ors. v. Nallamilli Rami Ready and Ors. : AIR2001SC3616 , a similar contention, urged to impugn a statuary provision as infringing Article 14 of the Constitution, was dismissed by this Court in the following words (at p. 715, para 8):
What Article 14 of the Constitution prohibits is 'class legislation' and not 'classification for purpose of legislation' If the Legislature reasonably classifies person 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 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 arbitral. If there is equality and uniformity in each group, the law will not become 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.20. Merely because the classification has not been carried out 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 broad discernible classification based on intelligible differentia, which advance the object 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.
27. It is the contention of Mr. Banerjee that the present reference can be disposed of keeping in view the judgment of the Apex Court in the case of Basheer v. State of Kerala. Legislature in its wisdom enacts law, amends the same as and when situation demands. The amendments so made in an existing law are also deemed to be Constitutional unless held to be otherwise on the touchstone of Constitutional provisions. According to Mr. Banerjee, the sentence structure has been rationalized by the Amendment Act of 2001, which is beneficial to the accused and amounts to mollification of the rigor of law and such amendment cannot be said to be unconstitutional.
28. We have heard the learned Advocates of the respective parties. We also perused the judgments of the Apex Court referred to above. We find sufficient merit in the submission of Mr. Roy, learned Advocate General, and Mr. Banerjee, learned Senior Counsel, appearing on behalf of the Union of India.
29. There is a presumption in law, that every statute and its provisions enacted by the Legislature, be it by the Parliament or any other law making authority, are Constitutional. Unconstitutionality of any statute should not be easily inferred.
30. Legislature in its wisdom enacts law, amends the same, as and when situation demands. The amendments so made in an existing law are also deemed to be constitutional unless held to be otherwise on the touchstone of Constitutional provisions. The statements and objects lead the legislature to introduce a law which may undergo a change in the estimation of the legislature. When any part of an existing law, substantive or procedural or either of them is amended or changed, it is presumed to rise up to the changing situations, social, political, or economic or all the three constituents joined together.
31. The Referee Bench had quoted the Statement of Objects and Reasons contained in the Amendment Act 9 of 2001 and such quotation finds place in paragraph 13 of the order of the Referee Bench. Sentences appearing in the said Statement of Objects and Reasons which are of paramount importance in this connection, are reproduced below:
While the Act envisages severe punishment for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalize the sentence 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 rationalization 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 serious offences.
The Act was amended in 1989, inter alia, to provide for tracing, seizing and forfeiture of illegally acquired property. The experience gained over the years reveals that the provisions have certain inadequacies due to which the implementation of the provisions has been tardy. Certain other inadequacies in the various provisions of the Act have been noticed. In order to remove those inadequacies it is necessary to amend the relevant provisions.
The provisions relating to certain procedural aspects like search and seizure have certain deficiencies due to which the law enforcement efforts against drug trafficking have not proved very effective. A need has also been felt to confer powers of entry, search, seizure, etc. in respect of offences relating to controlled substances and for tracing, freezing, seizing and forfeiture of illegally acquired property upon the empowered officers....
32. It would thus appear that apart from the prevalent situation arising out of investigation, trial and allied matters under the Principal Act of 1985, the Legislature had gainfully employed its experience gathered from the application of the pre-Amendment Act and apart from rationalization of the sentence structure it had also noticed 'certain inadequacies, due to which the implementation of the provisions' has been tardy'. Certain other inadequacies in the various provisions of the Act have been noticed. In order to remove those inadequacies it was felt by the Legislature that it is necessary to amend the relevant provisions.
33. The Court cannot go into the enquiry or investigation on the wisdom of the Legislature unless the Act or the statute which is the brainchild of the Legislature, on a judicial review is found to be an affront or a violation of Constitutional provisions. No Court can direct the Legislature to make a law providing for punishment harsher than the existing one. That would be, to say briefly, an unwarranted judicial activism. Nominality of the sentence is not the concern of the Court, rather the imposition of sentence according to the law is. Legislature defines the offence, provides the procedure for the trial of the offender and also prescribes the punishment. Compartmentalization of the three organizations of our system of governance, namely Executive, Judiciary and Legislature do function on their own with the only exception that judiciary being the voice of the people can test or examine the Constitutionality or the reasonableness (on the anvil of the Constitution) of any law made by the Legislature. But such judicial exercise would not be extended beyond its logical limit and view of the Court should not be imposed on the Legislature or on the law making functionaries to provide stricter or harsher punishment than what the statute provides.
34. The extent of judicial review of the law made by the Parliament had recently received the attention of the Constitution Bench of the Hon'ble Supreme Court, consisting of 9 Hon'ble Judges in the case of I.R. Coelho (dead) by LR.s. v. State of Tamil Nadu, reported in 2007 AIR SCW 611, where the Hon'ble Supreme Court held to the effect that 'the principles of Constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to Fundamental Rights.' (paragraph 44) Same logic would apply to analyse and interpret an amended provision of law which is impugned as a law affecting the rights of the parties and that of the society.
35. Legislature is not subordinate to the judiciary, but is only subject to judicial review of the law it enacts. Judicial review, of course, has its own limitations and cannot be used to curtail or substantially affect the Legislative intention in the making of law, amending of law or even in repealing of the law. The amendments of 2001 by their very nature are wholesome and seek to achieve the salutary objective of harmonizing between enforcement of criminal law and infliction of punishment, making the law both punitive and reformative.
36. We need to remind ourselves of the views expressed by the Hon'ble Supreme Court in the case of Basheer v. State of Kerala, reported in 2004 Cr. LJ 1418, wherein Their Lordships took a close look into the amendments introduced in 2001, the repercussions of the amendments and reasonableness of laws incorporated by such amendments. We may profitably reproduce herein the paragraphs 3 to 5, 7, 8 and 10 to 12 of the said judgment:
3. The NDPS Act, 1985 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 a small quantity of 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 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.
4. The provisions of the NDPS Act, 1985 were amended by the amending Act 9 of 2001, which rationalized the structure of punishment under the Act 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 only to those offenders who indulged in serious offences. The Statement of Objects and Reasons appended to the Bill declares this intention thus:
STATEMENT OF OBJECTS AND REASONS
Amendment Act 9 of 2001:--The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent 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 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 prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalize the sentence 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 rationalization 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 serious offences.
5. As a consequence of the amending Act coming into force on 2.10.2001, the sentencing structure underwent a drastic change. The Act introduced the concept of 'commercial quantity' in relation to narcotic drugs or psychotropic substances by adding Clause (viia) in Section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the expression 'small quantity' is defined in Section 2, Clause (xxiiia), as any quantity lesser than the quantity specified in the notification. Under the rationalized 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 rationalization of sentencing structure carried outby the amending Act 9 of 2001, in Section 27. A notification was issued on 9.10.2001, specifying in respect of 239 narcotic drugs and psychotropic substances, as to what would be 'small quantity' and 'commercial quantity'.
While dealing with the provision of Section 41(1) of the Amending Act 9 of 2001, the Hon'ble Apex Court observed in paragraph 7 as follows:
7. 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 2.10.2001 ; (b) all cases under investigation as on that date; and 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 2001. In other words, the benefit of the rationalized sentencing structure would be applicable to these categories. The proviso, however, makes an exception and excludes the application of the rationalized sentencing structure to cases pending in appeal.
8. 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 where the amending statute mollifies the rigour of law, the benefit of the mollification 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 rationalized 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 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 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.
10. In Rattan Lal v. State of Punjab, it was unequivocally declared by this Court that an ex post facto criminal law, which only mollifies the rigour of law is not hit by Article 20(1) of the Constitution and that if a particular law makes provision to that effect, though retrospective in operation, it would still be valid.
11. In T. Barai v. Henry Ah Hoe 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 Law (7'' Edn. pp. 387-88), this Court AIR at p. 157, para 22 said: (SCC p. 191, para 22)
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 common sense.12. 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, by Act 9 of 2001 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 find that the amendments (at least the ones rationalizing the sentencing structure) are more beneficial to the accused and amount to mollification of the rigour of the law. Consequently, despite retrospectively, 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 application would not be hit by Article 20(1) of the Constitution.
37. Their Lordships have used the expression 'However we find that the amendments, (at least the ones rationalizing the sentencing structure) are more beneficial to the accused and amount to mollification of the rigours of the law.' At more places than one, Their Lordships have opined the amendments to be rational. In our view, the very use of the word 'rational' by Their Lordships would lead to the irresistible conclusion that the amended provisions of law had been found to be Constitutional since rationality of the law made by the legislature is the 'Constitutionality' thereof. If the law in its rational and logical character meets the demand of the Constitution, it has to be held to be Constitutional and the wisdom of the legislature ought not to be doubled. No one is more concerned and alive to the needs of the people, rights of the parties or rights of society at large, than the law making functionaries, since law governs every sphere of our social, economic and legal existence. To make the law workable and to accept the law on its face value and to ensure that the law functions or operates with full authority, judicial review of law ought not to go beyond its permissible limit and presumption of Constitutionality of a law or statute or enactment, as in the case in hand, prevails with full force. The amendments made to the Narcotic Drugs and Psychotropic Substances Act, in 2001 satisfy the test of Constitutionality and are reasonable and logical in their character and application.
Sailendra Prasad Talukdar and Pranab Kumar Deb, JJ.
38. We agree.