Case Note & Summary
The petitioner, Abdul Gaffar Tota Patel, was one of three accused tried in Sessions Case No. 42/1998 before the Additional Sessions Judge at Malegaon for an offence under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The offence was committed on 9.1.1998, when the unamended Section 20(b)(i) provided for rigorous imprisonment up to five years and fine up to Rs.50,000. However, the trial court, by judgment dated 27.06.2002, convicted the petitioner and sentenced him to 10 years' rigorous imprisonment and a fine of Rs.1,00,000, relying on the amended provision which came into effect on 2.10.2001. The petitioner's Criminal Appeal No.749/2002 was dismissed by the Bombay High Court on 03.11.2003, and his SLP (Criminal) No.6998/2004 was dismissed by the Supreme Court on 30.07.2004. The petitioner then filed the present writ petition under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC), seeking to correct the sentence on the ground that the amended provision was not retrospective and the sentence should have been based on the law in force on the date of the offence. The High Court, after hearing the parties, noted that the trial court and the appellate court had not considered that the amendment was not retrospective. The court observed that the sentence of 10 years and fine of Rs.1,00,000 was illegal and contrary to law. Consequently, the High Court allowed the petition, set aside the sentence of 10 years, and reduced it to 5 years' rigorous imprisonment and fine of Rs.50,000, with default sentence of one year. The court directed that the petitioner be released forthwith if he had already served the reduced sentence.
Headnote
A) Criminal Law - Sentencing - Retrospective Application of Penal Statute - Section 20(b)(i) of Narcotic Drugs and Psychotropic Substances Act, 1985 - The petitioner was convicted for an offence committed on 9.1.1998 under Section 20(b)(i) of the NDPS Act, which at that time prescribed a maximum sentence of 5 years and fine up to Rs.50,000. The trial court, after the amendment came into force on 2.10.2001, sentenced him to 10 years and fine of Rs.1,00,000 under the amended provision. The High Court held that the sentence must be based on the law in force on the date of the offence, and since the amendment was not retrospective, the sentence was illegal. The court reduced the sentence to 5 years and fine of Rs.50,000. (Paras 2-5) B) Criminal Procedure - Inherent Powers - Section 482 of Code of Criminal Procedure, 1973 - The petitioner invoked the inherent powers of the High Court under Section 482 CrPC to correct the illegal sentence imposed by the trial court and confirmed by the appellate court. The High Court, exercising its inherent jurisdiction, held that the sentence was contrary to law and modified it to conform to the unamended provision. (Paras 1-5)
Issue of Consideration
Whether the sentence imposed under the amended Section 20(b)(i) of the NDPS Act, 1985 (with effect from 2.10.2001) can be applied to an offence committed on 9.1.1998, when the unamended provision provided for a lesser punishment.
Final Decision
The High Court allowed the writ petition, set aside the sentence of 10 years' rigorous imprisonment and fine of Rs.1,00,000, and reduced the sentence to 5 years' rigorous imprisonment and fine of Rs.50,000, with default sentence of one year. The court directed that the petitioner be released forthwith if he had already served the reduced sentence.
Law Points
- Retrospective application of penal statute
- sentencing based on law in force on date of offence
- inherent powers under Section 482 CrPC to correct illegal sentence
