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Sir, the very interesting fact is that the Definition Clause is re-lettered and relocated, but consequential amendment to the penal provision under Section 27A is not made. This is a drafting error on the part of the Government … (Interruptions) It is absolutely a drafting error on the part of the Government.

          Unfortunately, the consequential amendment is not done in Section 27A.  Section 27A is the penal provision.  But the re-lettering and relocation of the Definition is not carried out in Section 27A.

SHRI BHARTRUHARI MAHTAB (CUTTACK):  Hon. Speaker, Sir, this Ordinance was promulgated on 30th September, 2021 to amend Section 27A of the 1985 Act.  The Government is saying that this is being done to correct a drafting error. An Act, which came into force on 14th November, 1985 and has been amended thrice, that is, in 1988, in 2001 and in 2014, is now before us  for the fourth time to rectify a drafting error.  This amendment will be deemed to have been in effect from 1st May, 2014.

          The point that my friend, Mr. Premachandran, was making was relating to certain issues, which I agree with. 

          But I am on a different point. The amendments will come into effect from 2014, which means, it will have a retrospective effect.  At first, I wondered  how wisdom has dawned upon this Government after seven years to rectify a drafting error; and whether it was a drafting error at all?  After doing a little research, I found that the Tripura High Court noticed an anomaly, and so, the Union Government was directed by them to  amend Section 27A.

After an accused sought bail before the Special Judge in West Tripura in Agartala citing omission that amendment done in Sub-Clause 8(A) of Section 2 of the NDPS Act and relocated at Clause 7B of Section 2 has not been amended in Section 27A.  I made a little enquiry also.  This amendment was moved by the then Finance Minister Mr. Pranab Mukherjee and subsequently, by Mr. Meena, who was the Minister of State.  It was discussed in this House in 2011.  More than 16 Members participated in that deliberation.  I did not participate in that deliberation, of course, but I am aware that during that period also, this retrospective effect also was being discussed. The then Government, the UPA Government, did not listen to us.  My question here is this.  Shri Nishikant Dubey was the first initiator of that debate. If the Government thinks that this is a drafting error – and I believe in its logic – yet I cannot accept the view that with this amendment we can make a criminal law amended retrospectively.  Article 20 of the Constitution guarantees protection against double jeopardy. Article 20(1) says: “No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor 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.” So, even if this amendment is brought in, the result of the drafting error could lead to more Constitutional questions that are being raised.  I would not go into the merits of the Bill at all during this time of introduction but I would tell this Government, redraft it and come back to this House for approval.  Giving retrospective effect on penal provision is bad in law and that which is bad in law is no law.