"Might Create Incongruity To Constitutional Protection Under Art. 20": Tripura High Court Directs Centre To Amend Sec.27A Of NDPS Act Without Delay

The Tripura High Court has directed the Central Government, Ministry of Home Affairs to take appropriate steps for amending sec. 27A of the Narcotics Drugs and Psychotropic Substance Act, 1985 without further delay.

Observing that no amendment was done for substituting sec. 2(viiib)(i-v) under sec. 27A of the Act, a division bench comprising of Justice S Talapatra and Justice SG Chattopadhyay observed thus:

"We would hold that until the appropriate legislative change occurs by amending Section 27A of the NDPS Act appropriately, sub-clauses (i) to (v) of clause (viiia) of Section-2 of the NDPS Act shall suffer effect of deletion and bringing in sub-clauses i-v of the clause viii-b of Section-2 of the NDPS Act in that place. We are worried this effect might create an incongruity to the constitutional protection provided under Article-20."

The development came while the bench was answering a reference made by the Special Judge (NDPS Act), West Tripura, Agartala on the question as to "Whether provision of clause (viiia) of section 2 of NDPS Act is required to be read in section 27-A of the Act as it stands now or whether present clause (viiib) of section 2 is required to be read in section 27-A in place of clause (viiia)?"

According to sec. 27A of the Act, punishment for financing illicit traffic and harboring offenders is provided.

"Whoever indulges in financing, directly or indirectly, any of the activities specified in sub-clauses (i) to (v) of clause (viiia) of section 2 or harbours any person engaged in any of the aforementioned activities, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh ruppes but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees." The provision reads.

Sec. 2(viiia) of the Act was amended and relocated at clause (viiib) which came into effect from 1st March 2014. According to the re-lettered provision, the meaning of illicit traffic in relation to narcotic drugs and psychotropic substances has been defined thereby providing a catalogue of illicit activities.

However, the Court noted that no amendment was carried out in sec. 27A of the Act in which the activities remained to be under sec. 2 (viiia)(i-v). Consequently, sec. 27A had become an "inoperable provision by losing its definiteness".

Analyzing the submissions made by parties and relevant judgments on the subject, the Court observed thus:

"We have adopted this approach after reading the entire statute. We have only given effect of deletion and conjunction. As the same time we are constrained to observe that Central Government has failed to introduce the Amendment Act for amending the NDPS Act for purpose of removing that omission and bringing in the substitution by sub-clause i to v of clause (viiib) of Section-2 of the NDPS Act. In this circumstances we are persuaded to direct the Central Government in the Ministry of Home Affairs to take appropriate steps for amendment as required in Section-27A without further delay."

Furthermore, it said:

"In terms of the above, this reference is answered. Both the Central Government and the State Government shall publish a notification bringing about the content of this order in short for the public notice so that the requirement of Article-20 of the Constitution of India is not diminished. Such notification be made within a month from today."

The Court also directed that a copy of the aforesaid order be sent to the court of the Special Judge (under NDPS Act), West Tripura, Agartala and be circulated to all special courts (under NDPS Act) in the State of Tripura.

Title: Court on its Own Motion, High Court of Tripura, Agartala v. The Union of India, Represented by the Secretary to the Ministry of Home Affairs

Click Here To Read Order