Singh Vs. State of Punjab  INSC 74 (17 March 1999)
M.BB.Shah Thomas J.
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.
32A of the Act, which was inserted by Act No.2 of 1989 reads thus:
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.
the impact of the aforesaid ban is sought to be diluted with the help of
Section 36B of the Act which reads thus:
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
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.
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:
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.
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.
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.
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 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.
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.
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.
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:
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.
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.
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:
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 not likely to commit any offence
while on bail.
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.
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.
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
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.
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
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
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.
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.
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.
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
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.
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.
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.
appeal is disposed of accordingly.