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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.