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PETITIONER: MAKTOOL SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       17/03/2000

BENCH: K.T.Thomas, M.B.shah

JUDGMENT:

     J  U  D G M E N T Thomas J.  Leave granted.   Can  thesentence,  passed  on a convicte d 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

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be  exercised  by  the  convicting   court  as  provided  in sub-section (3).

     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

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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  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 non-  bailable.- (1)  Notwithstanding  anything  contained  in  the  Code  of

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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 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  pre-  conviction  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

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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  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 Code 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

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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 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.