D.P. Wadhwa, J.
(1) In these two applications filed separately by the two appellants we have been called upon to decide as a preliminary issue if the High Court has jurisdiction to admit the appellants to bail on their conviction for offences under the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘the Act’).
(2) For the purpose of decision of this preliminary objection raised by the State it is not necessary for us to go into the facts of the case except to note that both the appellants were convicted of an offence under section 20 of the Act, one appellant being sentenced to under go rigorous imprisonment for a period of 20 years and to pay -fine of Rs.2 lakhs and in default thereof to undergf) simple imprisonment for a period of 2 years, the second appellant sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.l,00,000.00 and in default thereof to undergo one year simple imprisonment. The State has contended that in view of section 32A of the Act this Court has no jurisdiction to grant bail to the appellants. This section is as under:- “32A.No suspension, remission or commutation in any sentence awarded under this Act.-Notwithstanding any
(3) Reference has also been made to section 37 of the Act which makes offences under the Act to be cognizable and non-bailable. This section is as der :- “(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), – (a) every offence punishable under this Act shall be congnizable; (b) h 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 oppose 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 bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.”
(4) The appellants, however, contend to the contrary and they in support of their case rely on section 36B of the Act which is as under “36-B.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 (2 of 1974), 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.”
(5) Chapter Xxix of the Code of Criminal Procedure, 1973 (for short ‘the Code’) deals with Appeals and Chapter Xxx of the Code with Reference and Revision. Chapter XXXII-E of the Code starts with the heading – Suspension, remission and commutation of sentences. While section 432 falling under this Chapter deals with power of the State Government to suspend or remit sentences, section 433 deals with the power of the State Government to commute a sentence. In the case of sentences of death Central Government can also exercise powers conferred upon the State Government under sections 432 and 433 of the Code. This is section 434. Section 435 provides for the State Government to act after consultation with the Central Government in certain cases. That are all the sections under Chapter XXXII-E of the Code.
(6) Considerable arguments were addressed by both the sides in support of their cases. We, however, do not think that the matter is of such a complicated nature.
(7) For our purpose we need refer only to Chapter Xxix of the Code dealing with the appeals. This Chapter contains sections 372 to 394. We need not set out all these sections, but after examining the same it can safely be said that all the sections under this Chapter would not apply when appeal is filed under the provisions of the Act after conviction and sentence of the accused. Section 389 of the Code falling under this Chapter which deals with (as the heading shows) Suspension and sentence pending the appeal; release of appellant on bail, would certainly be applicable to appeal under section 36B of the Act. Sub-sections (1) and (2) of section 389 of the Code which are relevant may be reproduced:- “(1)Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. xx xx xx xx”
(8) Section 36B of the Act incorporates the provisions of Chapters Xxix and Xxx of the Code “so far as may be applicable”. This is legislation by reference. It is not that whole of the provisions of Chapters Xxix and Xxx have been incorporated in the Act by pen and ink. In Dr. Partap Singh and another v. Director of Enforcement, Foreign Exchange Regulation Act and others, , with reference to the expression “so far as may be” the Supreme Court said that the expression had always been construed to mean that those provisions may be generally followed to the extent possible and it was not that those provisions had been incorporated by pen and ink. – In the case before the Supreme Court the provisions of section 37(2) of the Foreign Exchange Regulation Act, 1973, which provided for searches, had used the expression “the provisions of the Code relating to searches, shall, so far as may be, apply to searches directed under section 37(1) of the Act. Section 165 of the Code provides for searches by a police officer. The court said that reading the two sections together it merely meant that the methodology prescribed for carrying out the search provided in section 165 had to be generally followed, and that the expression “as far may be” had always been construed to mean that those provisions might be generally followed to the extent posssible. In Babubhai Muljibhai Patel v. Nandlal Khodidas Barto and others the court said that the words “as far as it can be made applicable” in section 141 of the Code of Civil Procedure made it clear that in applying the various provisions of that Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. Section 141 of the Code of Civil Procedure lays down that “the procedure provided in this Code in regard to all suits shall be followed, as far as it can be made applicable, in .11 proceedings in any court of civil jurisdiction.” The words “as far as can be made applicable” and “so far as may be” have the same meaning as the words “so far as may be applicable” as appearing in section 36B of the Act. We see no reason why provisions of section 389 as appearing in Chapter Xxix of the Code of Criminal Procedure could not be applicable in an appeal filed under section 36B of the Act.
(9) While section 389 of the Code read with section 36B of the Act talks of suspension of the order appealed against and, thus, to release the appellant on bail if in confinement, section 32A of the Act talks of suspension, remission and commutation of the sentences. To our mind, section 32A of the Act has reference to Chapter XXXII-E of the Code which, as noted above, refers to suspension, remission and commutation of sentences. Section 32A of the Act put shackles on the powers of the State and Central Governments to suspend, remit or commute the sentences. This section does not control the powers of the High Court to suspend the order appealed against and to release the appellant on bail if he is in confinement.
(10) We do not think that provisions of section 37 of the Code forbid the High Court from releasing a convict under the Act on his filing an appeal in terms of section 389 of the Code. Section 37 was subject-matter of interpretation by the Supreme Court in Narcotics Control Bureau v. Kishan Lal and others . Here the court said that limitations placed by section 37 on the power to grant bail were applicable to the High Court as well while exercising power under section 439 of the Code. Section 439 of the Code empowers the High Court to grant bail to an accused person, but that section is applicable when an accused is arrested or is undergoing trial for a non-bailable offence, or even when his appeal against conviction is pending in the court of session. Powers to exercise under section 439 of the Code by the High Court are different than the powers exercisable under section 389 of the Code. Here it is suspension of the order appealed against and consequent release of the convict on bail.
(11) We are, therefore, of the opinion that the High Court has power to release a convicted person under the Act oil bail pending bearing of his appeal before it. But then we must sound a word of caution. Section 389 requires in that case the reasons to be recorded in writing and the High Court will certainly take into consideration the preamble of the Act and provisions of section 37 of the Act while exercising powers to release a convict on bail pending his appeal. These will serve as proper guidelines while exercising discretion in releasing the convict on appeal. The Supreme Court has said in Kishan Lal’s case (supra) the dominant purpose underlying the Act bad to be borne in mind and it will be a sound judicial discretion to take into consideration .he provisions of section 37 of the Act as well while exercising discretion in releasing the convict on bail pending his appeal. Because of the view which we have taken it is hardly necessary for to analyze various judgments which were referred to us during the course of arguments by both the parties.
(12) Mr. Naseem appearing for the appellants referred to a decision of the Lucknow Bench of the Allahabad High Court in Ram Charan v. Union of India, 1991 Luck. L.J. 108, where a Division Bench held that the provisions of section 32A were hit by Articles 14 and 21 of the Constitution and, thus, unconstitutional. Mr. Naseem, however, said he was not advancing any such plea in the present case.
(13) Two different Benches of the Madras High Court in Oliver Fernanda, P.T. v. Assistant Collector of Madras (1990 Drugs Cases 362), and Kantilal Jain and others v. Assistant Collector (CIU) & Anr. [(1992) Ccr 598 (DB)] have held that High Court has power to grant bail pending appeal against conviction and sentence under the Act.
(14) In Kerala High Court in Phasalu v. State of Kerala [1992(1) Crimes 295] two Judges differed in their views while one Judge saying that bail could not be granted, the other taking the view that it could be so granted, the matter was referred to third Judge who said that bail could be granted.
(15) 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.
(16) We will, thus, overly the objection raised by the State and hold that pending any appeal by a convicted person under the Act, the High Court has power that order appealed against be suspended and, also, if the convicted person is in confinement, that be be released on bail.