Gangaram Patel Vs. State of Orissa - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - delhi ;air 1975 sc 802). 6. a sovereign legislature has the power to enact prospectos as well as retrospective laws.a. pasayat1. petitioner calls in question legality of the order dated 12-5-1992 passed by the learned judicial magistrate, first class, sohella directing to treat the case pending before him in 2(a) c.c. no. 83 of 1988 to be one covered by the narcotic drugs and psychotropic substances act, 1985 (in short, the act ) and further directing to commit the case to the sessions judge sambaipur.2. the background as portrayed by the petitioner is as follows: on 18-7-1988 the inspector of excise, mobile unit bargarh searched the petitioner in presencevof witnesses and found 100 grams of ganja dust from his possession. this was held to be illegal possession punishable under section 47 (a) read with section 55 of the bihar and orissa excise act, 1915 (in short, the 'excise act., after seizure the petitioner was arrested and was released on bail with a direction to appear in court on the date fixed. report was submitted to the court of sdjm, bargarh along with the seizure list. subsequently it was transferred to the court of jmfc sohella. the case was registered as 2(a) c.c. no. 83 of 1988. on receipt of summons petitioner appeared before the jmfc. sohella and trilad commenced for the alleged offence under section 47 read with section 55 of the excise act. after trial had proceeded, inspection was made by the learned chief judicial magistrate sambaipur and in his notes of inspection dated 1-5-1992 and 2-5-1992 it was observed that after coming into force of the act the case under the act required commitment to the court of session judge sarobalpuf learned jmfc ccordingly passed order dated 12-51992 which is subject-matter of challenge. 3. petitioner's stand is that the offenca relating to ganja came into force on 3-2-1989 in the state of orissa and therefore the same has no application so far as the petitioner is concerned as the alleged occurrence took place on 18-7-1988v the (earned counsel for state on the other hand submitted that after the act came into force offences relating to ganja are to be tried under the act, even though they are pending proceedings. 4. for resolution of the controversy reference to section 8 of the act is necessary. the same reads as follows : 'b. prohibition of certain operations-no person shall- (a) cultivate any coca plant or gather any portion of coca plant or (b) cultivateahe opium poppy or any cannabls plant or (c) produce, manufacture, process sell purchase, transport, warehouse, use, consume, import inter-state, export inter-state, import into india, export from india or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this act or the rules or orders made thereunder and in a case where any provision, imposes any requirement by way of licence, permit or authorisation, also in accordance with the terms and conditions of such licence, permit or authorisation ; provided that, and subject to the other provisions of this act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession use, consumption, purchase, sale transporty warehousing, import inter-state and export inter state of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the central government may, by notification in the official gazette, specify in this behalf: provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.'the first proviso makes it clear that subject to other provisions of the act and the rules made thereunder, the prohibition against cultivation of the cannabis plant for production of ganja or production, possession, use, consumption, purchase, sale, transport. warehousing, import inter-state and export inter-state of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the central government may by notification in the official gazette specify in this behalf. in other words under section 8 prohibition of certain operations takes effect only from the date which the central government notifies in the official gazette. in exercise of powers under section 52a(1) of the act, the central government has declared ganja to be a narcotic drug vide s.o. 381 (e) dated 29-5-1989 published in gazette of india, extraordinary, part ii, section 3(ii), no. 300 dated 29-5-1989. the said notification reads as follows : 's. o. no. 381 (e), dated 29th may, 1989- in exercise of the powers conferred by sub- section (1) of section 52a of the narcotic drugs and psychotropic substances act, 1985 (61 of 1985), the central government having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space, specifies the following narcotic drugs and psychotropic substances, namely ; 1. narcotic drugs ; (i) opium; (ii) morphine; (iii) heroin; (iv) ganja ; (v) hashis ; (vi) codeine; (vii) thebaine; (viii) cocaine; (ix) poppy straw and any other manufactured drug as defined under clause (xi) of section 2 of the act. 2. psychotropic substances : (1) mathaqualone; (ii) t. h.c; (iii) amphetamine ; and(iv) any other psychotropic substances as defined under clause (xxii) of section 2 of the said act. (no. 4/89-f. no. 664/23/89/opium).'5. the submission made by the learned counsel for state overlooks the constitutional mandate as embodied in art. 20(1). when a certain act is not an offence according to the law in force at the time when the act is done, the person who does that act must not be held guilty of an offence merely because subsequently a law is made making such act an offence. the proceedings contemplated under art. 20(1) are in the nature of criminal proceedings before a court of law or a judicial tribunal. 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. the rule is however subject to the limitation contained in art. 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 sama as in the earlier act, i.e., when the essential ingredients of the two offences are different. (see t. barai v. henry ah hoe and anr. ; air 1938 sc 150). the general principle as embodied in art. 20(1) is that a statute can be made to operate retrospectively by/express enactment to that effect or by necessary implication of law. ex post facto laws may be classified as follows: (a) every saw that makes an action done before the passing of the law and which was innocent when done criminal and punishes that action, (b) every law that aggravates a crime or makes ft greater than it was, when committed, (c) every law that changes the punishment and inflicts a great punishment than the law annexed to the crime when committed; and (d) every law that alters the legal rules of evidence and receives less or different testimony than the law required a the time of the commission of the offence in order to convict the offender. laws affecting rules of evidence and procedure are not covered by art 20(1). hence such rules may be made to operate retrospectively so as to apply to the prosecution for offences committed even before the passing of such rules. (see salian singh v. state of punjab; air 1964 sc 464). retrospective effect cannot be given to a law punishment for an offence, so as to cover offences committed prior to the making of the law. (see commissioner of health tax amritsar v. suresh seth : air 1981 sc 1106 ; and tiwari kanhaiyalal etc v. the commissioner of income-tax. delhi ; air 1975 sc 802). 6. a sovereign legislature has the power to enact prospectos as well as retrospective laws. but art. 20(1) sets two limitations upon the law making power of every legislative authority in india as regards retrospective criminal legislation. it prohibits (i) the making of ex post facto criminal law. i.e., making an act a crime for the first time and then mating that law retrospective; (ii) the infliction of a penalty greater than that which might have been inflicted under the law which was in force then the act was committed. what is prohibited under clause (.) is only conviction or sentence under an ex post facto law and not the trial thereof. the prohibition is only against prescribing judicial punishment with retrospective effect. none of the clauses of art. 20(1) applies unless there is an 'offence'. there being no definition of 'offence' in the constitution, the definition in section 3(37) of the general clauses act. 1897 is to be applied. it, therefore, means an act or omission which is punishable by any law by way of fine, imprisonment or death. but unless there is a law forbidding the doing or the omission to do something no question of punishment comes. the expression 'law in force' refer, to, the law factually in operation at the time when the offence was committed and does not relate to a law deemed to be in force by the retrospective operation of a law subsequently made. clause (1) of art. 20 in fact controls the power of the legislature to enact such retrospective legislation so far as the punishment for crimes is concerned. the words 'penalty greater than that which might have been inflicted' law down the second prohibition contained in the clause. a person may be subject to only those penalties which were prescribed by the lay which was in force at the time when he committed the offence for which he has been punished. if an additional or higher penalty is prescribed by any law made subsequent to the commission of the offence, that will not operate against him in respect of the offence in question. penalty means punishment for the offence and would not include any other remedial measure provided for removing the mischief. 7. judged in the above background, continuance of the proceeding as if the petitioner committed an offence under the act is not maintainable. however, there is no bar for continuance of the proceeding against him under the excise act which was in force at the relevant point of time, and under which the proceeding was originally initiated. the application is allowed to the extent indicated above.