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PETITIONER:

MAKTOOL SINGH

Vs.

RESPONDENT:

STATE OF PUNJAB

DATE OF JUDGMENT: 17/03/1999

BENCH:

K.T.Thomas, M.BB.Shah

JUDGMENT:

Thomas J.

Leave granted. Can the sentence, passed on a convicted

person under the Narcotic Drugs and Psychotropic Substances Act,

1985 (for short the Act) be suspended during the pendency of

appeal presented by him? Answers given to the said question by

different High Courts are in different tones. The question has

now winched to the fore in this Court as the appellant did not

succeed in getting the sentence (passed on him) suspended by the

High Court though he moved for it on presentation of an appeal in

challenge of the conviction and sentence.

Section 32A of the Act, which was inserted by Act No.2 of 1989

reads thus:

"32A. No suspension, remission or commutation in any sentence

awarded under this Act Notwithstanding anything contained in

the Code of Criminal Procedure, 1973 or any other law for the

time being in force but subject to the provisions of section 33,

no sentence awarded under this Act (other than section 27) shall

be suspended or remitted or commuted."

A plain reading of the above Section is that it prohibits

suspension of a sentence awarded under the Act except in the case

of an offence under Section 27. To make the aforesaid meaning

clearer the legislature has added a non obstante limb to the

Section to the effect that such prohibition is operative in spite

of any other provision contained in the Code of Criminal

Procedure, 1973 (for short the Code) or under any other law.

But the impact of the aforesaid ban is sought to be diluted with

the help of Section 36B of the Act which reads thus:

"36B. Appeal and revision The High Court may exercise, so far

as may be applicable, all the powers conferred by Chapters XXIX

and XXX of the Code of Criminal Procedure, 1973, on a High Court,

as if a Special Court within the local limits of the jurisdiction

of the High Court were a Court of Session trying cases within the

local limits of the jurisdiction of the High Court."

Chapter XXIX of the Code contains a fasciculus of provisions for

dealing with Appeals among which is included Section 389 of the

Code which confers power for suspension of sentence pending

appeal. Such powers can be exercised by the appellate court as

well as by the High Court. In certain cases power of suspension

of sentence can be exercised by the convicting court as provided

in sub-section (3).

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The argument advanced before us is that when Section 36B of the

Act preserved the powers of the High Court under Chapter XXIX of

the Code while dealing with an appeal challenging conviction

under the Act, it must be deemed to have preserved all the powers

mentioned in Section 389 of the Code including the power to

suspend the sentence. But we cannot give accord to that argument

on the following grounds. When Section 36B of the Act is

juxtaposed with Section 32A the latter must dominate over the

former mainly for two reasons. First is that Section 32A

overrides all the provisions of the Code, by specific terms,

through the non obstante limb incorporated therein. Second is

that Section 36B has clearly indicated that its applicability is

subject to the extent of adaptability because of the words

employed therein so far as may be applicable. This means, the

High Court can exercise powers under Chapter XXIX of the Code

only to the extent such powers are applicable. In other words,

if there is an interdict against applicability of any provision,

the High Court cannot use such provision, albeit its inclusion in

Chapter XXIX of the Code. That is the effect of employment of

the words so far as may be applicable when a statute

incorporates provision of another statute.

Otherwise Section 32A of the Act must have been intended for

covering some other field altogether. Learned counsel contended

that the Section is intended to cover the provisions subsumed in

placitum E in Chapter XXXII of the Code. Sections 432 to 435

are bundled therein. The sub-title given to placitum E is this:

Suspension, Remission and Commutation of Sentences. Section

432 deals with the power of the appropriate Government to suspend

execution of any sentence or to remit the whole or any part of

the punishment to which any person has been sentenced. Section

433 deals with the powers of the Government to commute sentence.

The contention is that Parliament has sought to curb the

aforesaid powers of the Government through enactment of Section

32A of the Act, and not the power of the High Court to suspend

sentence.

If the intention of Parliament in enacting Section 32A of the Act

is only to curb Governments powers under Sections 432 and 433 of

the Code the Parliament would, instead of using the present all

covering words in the non obstante clause (notwithstanding

anything contained in the Code or in any other law) have

employed the words notwithstanding anything contained in Chapter

XXXII of the Code. Precision and brevity are generally the

hallmarks of legislative draftsmanship. Hence lesser words for

achieving the purpose would have been employed by the legislature

while framing a provision in the statute.

That apart, could parliament have laboured so much if its only

object was to bridle the powers of the Government under Section

432 and 433 of the Code because even apart from those provisions

a Government could achieve it by exercising the constitutional

powers. Article 72 of the Constitution of India confers power on

the President of India to suspend, remit or commute sentence in

all cases where punishment or sentence is for an offence against

any law relating to a matter to which executive power of the

Union extends. Art.161 contains similar power which Government

of a State can exercise in relation to a person convicted of any

offence against law relating to a matter which the executive

power of the State extends. A Constitution Bench of this Court

has held in Maru Ram vs. Union of India (AIR 1980 SC 2147) that

power under Arts.72 and 161 of the Constitution cannot be

exercised by the President or Governor on their own but only on

the advice of the appropriate Government. The said ratio has

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been followed by another Constitution Bench in Kehar Singh vs.

Union of India (AIR 1989 SC 653). Thus, the position relating to

Arts.72 and 161 of the Constitution, as interpreted by this

Court, is that the appropriate executive Government can advice

the Head of the State to exercise powers thereunder and such

advice is binding on him.

If the object of S.32A of the NDPS Act is to take away the power

of the Government to suspend, remit or commute the sentence, the

legislative exercise in enacting the said provision is

practically of futility because even without Section 432 of the

Code, the appropriate Government can suspend, remit or commute

sentences in exercise of the constitutional functions.

For the aforesaid reasons we are not impressed by the contention

that the sole object of incorporating a provision like Section

32A in NDPS Act was to impose curb on the executive power under

Sections 432 and 433 of the Code to suspend, remit or commute the

sentence passed on a particular accused.

In this context the raison detre for introducing Section 32A in

the Act can be looked at. In the Statement of Objects and

Reasons for introducing Bill No.125/1988 in the Lok Sabha (which

later became Act 2 of 1989) the following passage has been

mentioned as one of the statements:

"Even though the major offences are non-bailable by virtue of

the level of punishment, on technical grounds, drug offenders

were being released on bail. In the light of certain

difficulties faced in the enforcement of NDPS Act, 1985 the need

to amend the law to further strengthen it, has been felt."

One of the objects mentioned therein is this: To provide that

no sentence awarded under the Act shall be suspended, remitted or

commuted.

It must be pointed out that in the Statement of Objects and

Reasons no concern was shown against the executive powers of

remission or commutation or suspension of sentence, but the main

concern focussed was on the need to further strengthen the bail

provisions. That apart, we are not aware of any criticism from

any quarter that Government have been remitting or suspending or

commuting sentences awarded to persons convicted of offences

under the Act. It is preposterous to think that a situation was

created by which Parliament was forced to step in to curb the

executive powers of the Government to suspend sentences passed on

the convicts under the Act.

At this juncture a reference to Section 37 of the Act is

apposite. That provision makes the offences under the Act

cognizable and non-bailable. It reads thus:

"37. Offences to be cognizable and nonbailable.- (1)

Notwithstanding anything contained in the Code of Criminal

Procedure, 1973(a) every offence punishable under this Act shall

be cognizable; (b) no person accused of an offence punishable for

a term of imprisonment of five years or more under this Act shall

be released on bail or on his own bond unless-"

(i) the Public Prosecutor has been given an opportunity to oppose

the application for such release, and

(ii) where the Public Prosecutor opposes the application, the

court is satisfied that there are reasonable grounds for

believing that he is not guilty of such offence and that he is

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not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b)

of sub-section (1) are in addition to the limitations under the

Code of Criminal Procedure, 1973 or any other law for the time

being in force, on granting bail.

The only offences exempted from the purview of the

aforesaid rigors on the bail provisions are those under Sections

26 and 27 of the Act. The former is punishable up to a maximum

imprisonment for three years and latter up to a maximum

imprisonment for one year. For all other offences the courts

power to release an accused on bail during the period before

conviction has been thus drastically curtailed by providing that

if the Public Prosecutor opposes the bail application no accused

shall be released on bail, unless the court is satisfied that

there are reasonable grounds for believing that he is not guilty

of such offence.

If the position was thus even before a trial court

completes adjudication, the position regarding bail cannot be

more liberal and lighter after the trial court finds him guilty

of the offence on completion of the adjudication. The

interpretation sought to be placed by the learned counsel would

lead to the consequence that power of court to release an accused

on bail during preconviction is rigorous while it will be liberal

during post-conviction period. We do not think that Parliament

would have intended such a consequence to take place. Section

32A was intended to plug the lacuna which existed during the

pre-amendment stage.

It is pertinent to notice that Section 32A itself exempted cases

falling under Section 27 of the Act by putting the words other

than Section 27 within a parenthesis. This is because Section

27 deals with offences of far lesser degree when compared with

the other offences in the Act. Learned counsel contended that if

that was the intention of Parliament Section 26 also would have

been included in the parenthesis so as to exempt that offence

from the purview of Section 32A. We are not disposed to question

the wisdom of Parliament as to why Section 26 was also not

brought within the exemption. Perhaps it was not so done because

Section 26 relates to offences which are more serious than the

offences mentioned in Section 27 of the Act.

A Full Bench of the Kerala High Court in Berlin Joseph @

Ravi vs. State (1992 1 Crimes 1221 = 1992 KLT 514) has adopted

the view that Section 32A of the Act has curtailed the powers of

the court to suspend the sentence passed on a convicted person of

offences under the Act, except the offence under Section 27. A

Division Bench of Rajasthan High Court in Anwar vs. State (1994

2 Crimes 687) and a Full Bench of Madhya Pradesh High Court in

Rajendra Singh vs. State of M.P. (1995 Crl. Law Journal 3248)

have also adopted the same view.

But a Division Bench of the Delhi High Court in Amarjit

Singh vs. State (1993 2 Recent Crl. Reports 466) has taken a

different view on Section 32A. Though the Full Bench decision in

Berlin Joseph vs. State (supra) was brought to the notice of the

Division Bench it was skipped by a curt observation in the

following lines:

"Mr. Handa strongly relied on a later Full Bench decision of

the Kerala High Court in Berlin Joseph @ Ravi v. State (1992 1

Crimes 1221) where the Full Bench has taken the view that High

Court has no power to suspend the sentence of a convicted person

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under the Act during the pendency of his appeal or revision.

With respect we are unable to agree to this view. Section 32A of

the Act is neither a proviso to section 36B of the Act nor it

controls it."

The Delhi High Court has not adverted to any of the

reasoning contained in Berlin Josephs decision. But a Full

Bench of the Gujarat High Court in Jyotiben Ramlal Purohit vs.

State of Gujarat (1997 3 Recent Crl. Reports 607) considered the

question, rather at length, and differed from the ratio in Berlin

Joseph (supra). Three premises were put forward by the Gujarat

High Court in the said decision. First is that Section 36B has

clearly conferred all powers provided in Chapter XXIX of the

Code. Second is, the word award used in Section 32A of the Act

denotes only the sentence passed by the final court and not the

trial court. Third is, that under Section 389(3) of the Code a

trial court is empowered to suspend the sentence for the offence

under Section 26 of the Act and if that be so the legislature

can hardly have thought about bringing such an anomalous

consequence, namely that the trial court can grant bail but the

appellate court cannot.

We must observe that the aforesaid three premise are faulty. We

have already dealt with the contention that Section 36B would

take care of powers of the appellate court to suspend the

sentence and we found that the provision cannot override the

clear ban contained in Section 32A of the Act. The second

premise that the word award should be construed not as a

sentence passed by the trial court cannot be upheld at all. How

can it be said that when trial court awards a sentence that

cannot be treated in law as a sentence awarded. Then what is the

legal import of such a sentence? To say that a sentence passed

by a trial court would be no awarding of sentence merely because

the conviction has been challenged, appears to us to be too

tenuous for countenance.

The third premise adopted by the Gujarat High Court is based on a

fallacious assumption that in spite of Section 32A the trial

court has power to suspend the sentence passed on a conviction

under Section 26 of the Act. Learned judges wrongly assumed that

under Section 389(3) of the Code a trial court has such a power.

The effect of any order passed under Section 389(3) of the Code

is to suspend the sentence, as can be discerned from the words in

the specific and the sentence of imprisonment shall be deemed to

be suspended. When power of suspending the sentence is taken

away by the legislative interdict, it would apply to the court

which convicts the accused as well. A legal premise cannot be

made up on a wrong assumption.

The upshot of the above discussion is that Section 32A of

the Act has taken away the powers of the court to suspend a

sentence passed on persons convicted of offences under the Act

(except Section 27) either during pendency of any appeal or

otherwise. Similarly, the power of the Government under Section

432, 433 and 434 of the Criminal Procedure Code have also been

taken away. Section 32A would have an overriding effect with

regard to the powers of suspension, commutation and remission

provided under the Criminal Procedure Code.

Before parting with the matter we must deal with a possible

fall-out of adopting such a view. Learned counsel for the

appellant has voiced a concern that if High Courts have no power

to suspend sentence under any contingency its consequence is that

long duration of pendency of appeals would result in serious

miscarriage of justice in many cases. We are aware of such hard

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consequences which might erupt. The solution to such problems

can be worked out by Parliament. Till then the High Courts

should direct the Registry to board appeals under the Act on a

priority basis and dispose them of as early as possible. As a

temporary measure to lessen the problem we direct the Registry of

each High Court to include every appeal (against conviction of

offences under the Act) in the hearing list as soon as such

appeal becomes ripe for hearing. We express the hope that the

Bench of the High Court concerned would give preference to such

appeal for early hearing.

The appeal is disposed of accordingly.