Supreme Court: Article 20 of Indian Constitution Doesn't Prohibit Court From Imposing Lesser Punishment As Per New Law

Whether the Appellant can be granted the benefit of the new legislation and be awarded a lesser punishment as is presently prescribed under the new law? This Court in T. Barai v. Henry Ah Hoe   MANU/SC/0123/1982 : 1982:INSC:92 : (1983) 1 SCC 177, had held that when an amendment is beneficial to the Accused it can be applied even to cases pending in Courts where such a provision did not exist at the time of the commission of offence. It was said as under:

22. It is only retroactive criminal legislation that is prohibited Under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable Under Section 16(1)(a) of the Act, there is no reason why the Accused should not have the benefit of such reduced punishment. 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.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1447 of 2024.

Decided On: 07.03.2024

A.K. Sarkar & Co. and Ors. Vs. The State of West Bengal and Ors.

Hon'ble Judges/Coram:

Sudhanshu Dhulia and P.B. Varale, JJ.

Citation: MANU/SC/0181/2024.

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Notes on Article 20 of constitution of India

Article 20 has taken care to safeguard the rights of persons accused of crimes. Persons here means the citizens, non-citizens as well as corporations. Please note that this article cannot be suspended even during an emergency in operation under article 359. Article 20 also constitutes the limitation on the legislative powers of the Union and State legislatures.

Ex-Post facto Law

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Whether trial of offence under ex post facto law is permissible?

After dealing with the concept of possession, we think it apt to address the issue raised by the learned counsel for the appellant that he could have convicted and sentenced under theOpium Act, as that was the law in force at the time of commission of an offence and if he is convicted under Section 18 of the NDPS Act, it would tantamount to retrospective operation of law imposing penalty which is prohibited under Article 20(1) of the Constitution of India. Article 20(1) gets attracted only when any penal law penalises with retrospective effect i.e. when an act was not an offence when it was committed and additionally the persons cannot be subjected to penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. The Article prohibits application of ex post facto law. In Rao Shiv Bahadur Singh and Anr. v. State of Vindhya Pradesh[23], while dealing with the import underArticle 20(1) of the Constitution of India, the Court stated what has been prohibited under the said Article is the conviction and sentence in a criminal proceeding under ex post facto law and not the trial thereof. The Constitution Bench has held that:-

".... what is prohibited under Article 20 is only conviction or sentence under an 'ex post facto' law and not the trial thereof. Such trial under a procedure 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. A person accused of the commission of a particular Court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved."

In the instant case, Article 20(1) would have no application. The actus of possession is not punishable with retrospective affect. No offence is created under Section 18 of the NDPS Act with retrospective effect. What is punishable is possession of the prohibited article on or after a particular date when the statute was enacted, creating the offence or enhancing the punishment. Therefore, if a person is in possession of the banned substance on the date when the NDPS Actwas enforced, he would commit the offence, for on the said date he would have both the 'corpus' and 'animus' necessary in law.

Supreme Court of India

Mohan Lal vs State Of Rajasthan on 17 April, 2015

Citation;AIR2015SC2098,  2015CriLJ2811, (2015)6SCC222

Bench: Dipak Misra, S.A. Bobde

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