BASHEER@ N.P. BASHEER versus STATE OF KERALA

Citation: [2004] 2 S.C.R. 224 · Decided: 09-02-2004 · Supreme Court of India · Bench: K.G. BALAKRISHNAN · Disposal: Disposed off

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
BASHEER@ N.P. BASHEER 
v. 
STA TE OF KERALA 
FEBRUARY 9, 2004 
B 
[K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.] 
Narcotic Drugs and Psychotropic Substances (Amendment) A ct, 200 I: 
Section 41(/) proviso-Constitutionality of-Various provisions of the 
C NDPS Act, 1985 were amended and graded sentences prescribed based on the 
quantity of narcotic drug or psychotropic substance in respect of which the 
offence was committed-The amended provisions were applicable to all cases 
pending before the courts on 2-10-2001 or under investigation on that date-
But the proviso to S. 41 (I) excluded the benefit of the amendment to. cases 
D pending in appeal on that date-Held: Classification rational and based on 
intelligible dijferentia having nexus with one of the objectives of the Act viz., 
avoidance of delay in trials-The fortuitous possibili(v 1?( an accused getting 
the benefit of the amendmeni where trial concluded before 2-10-2001 and 
appeal filed thereafter would not render the proviso unconstitutional. 
E 
Constitution of India, 1950: 
Article 14-Classification-Held: Marginal over-inclusiveness or under-
inc/usiveness not violative of Art .. 14. 
The· appellants-accused were convicted by the trial court fo.r offences 
F under the Narcotic Drugs and Psychotropic .Substances Act, 1985 and their 
appeals were pending before the High Court on 2-10-2001, the date on 
which the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 
2001 came into force. 
The provisions of the NDPS Act, 1985 were amended by the Narcotic 
G Drugs and Psychotropic Substances (Amendment) Act, 2001, which 
rationalized the structure of punishment under the Act by providing 
graded sentences Jinked 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 
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[email protected]. BASHEER v. STATE OF KERALA 
225 
indulged in serious offences. 
A 
Section 41(1) of the .NDPS (Amendment) Act, 2001 made the 
amended provisions of the NDPS Act, 1985 applicable to (a) All cases 
pending before the court on 2nd. October, 2001; or (b) All cases under 
investigation as on that date. However, the proviso to Section 41(1) of the 
NDPS (Amendment) Act, 2001 excluded the application of the rationalized B 
sentencing structure to cases pending in appeal. Hence, the appeal. 
On behalf of the appellant, it was contended that there could be no 
difference between the cases pending before the courts and cases pending 
in appeal and, therefore, the classification made by the legislature was 
unreasonable and violative of Article 14; and that the fortuitous reason C 
of quick disposal of trials prior to 2-10-2001 should not determine the fate 
of the accused in respect of the benefit of the amended provisions of the 
amended Act. 
Disposing of the appeal, the Court 
HELD: 1.1. Merely because the classification has not been carried 
o-ut with mathematical precision, or that there are some categories 
distributed across the dividing line, is hardly a ground for holding that 
D 
the legislation falls foul of Article 14, as long as there is a broad discernible 
classification based on intelligible differentia, which advances the object E 
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. [233-E, F] 
1.2. In the instant case, Parliament had two discernible objectives F 
in bringing forth the Narcotic Drugs and Psychotropic Substances 
(Amendment) Act, 2001. These are evident from the Statement of Objects 
and Reasons and they are: 
(1) Avoidance o( delay in trials; and 
(2) Rationalization of sentence structure. [233-F-GJ 
2.1. The accused, who had been tried and convicted before 2-10-2001 
(i.e. as per the unamended Narcotic Drugs and Psychotropic Substances 
Act, 1985) could possibly urge in the pending appeals, that as their trials 
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226 ' 
SUPREME COURT REPORTS 
[2004) 2 S.C.R. 
A were not held in accordance with the amended provisions of the Act, their 
trials must be held to be vitiated and that they should. be retried in 
accordance with the amended provisions of the Act. This would certainly 
defeat the first objective of avoiding delay in such trials. Hence, Parliament 
removed th.is class of cases from the ambit of

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