JUDGMENT
P.C. Jain, J.
1. The petitioner Bhanwarsingh was convicted under Section 8 read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short ‘the NDPS Act’) by the learned Sessions Judge, Rajsamand by his judgment dated 19-2-1996 and sentenced to ten years’ rigorous imprisonment together with a fine of Rs. 1 lakh and in default whereof to undergo further rigorous imprisonment for three years.
2. Aggrieved by the above judgment, the petitioner has filed S B. Criminal Appeal No. 160 of 1996 and also submitted an application under Section 389 Cr. P. C. for suspension of the execution of the above sentence.
3. The learned Public Prosecutor has vehemently opposed the application for suspension of execution of the sentence on the ground that Section 32A of the Act starts with the non-obstante clause ‘Notwithstanding’ and it places a complete embargo on the powers of the High Court to suspend the sentence passed against any person under the provisions of the NDPS Act. He submitted that in view of the complete prohibition contained in Section 32A of the Act, this Court is not empowered to order for the suspension of the execution of the sentence. The learned Public Prosecutor has relied on Narcotics Control Bureau v. Kishanlal, (1991 Cr LR (SC) 178), for the proposition that the powers of the High Court to grant bail under Section 439 Cr. P. C. are subject to the limitation contained in Section 32 of the NDPS Act and restrictions placed on the powers of the High Court under Section 32 of the NDPS Act are applicable in the matter of granting bail.
4. The learned Public Prosecutor has also relied on Anwar v. State (1994 Cr. LR (Raj) 797), Berlin Joseph v. State (1992 (2) EFR 369).
5. The learned counsel for the petitioner has submitted that Section 32A of the Act contains a complete bar as regards the suspension, remission and commutation in any sentence awarded under the Act. However, Section 36B preserves the powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure, 1973 on a High Court and the High Court can exercise the powers conferred by Section 389 Cr. P. C. which also occurs in Chapter XXIX of the Code as regards the powers to suspend the sentence. The High Court can exercise these powers with regard to an appeal filed against the judgment of Special Court as if it were the Court of Sessions treating the case within the local limits of the jurisdiction of the High Court. His main thrust is that Section 32A of the Act contains a bar on the executive powers exerciseable in terms of Sections 432, and 433 of the Code of Criminal Procedure, 1973. Under Section 432(1) Cr. P. C, the appropriate Govt. is given ample powers to suspend the execution of the sentence or remit whole or in part of the punishment to which any person has been sentenced. The other part of the section deals with procedure for suspending or remitting the sentence. Section 433 Cr. P. C. confers powers on the Govt. to commute the sentence. These two powers do not vest with the Court and, therefore, the language of Section 32A of the Act which speaks of suspension, remission, and commutation of sentence clearly shows that it relates only to the Govt. or the Executive and not to the Court. The Parliament has left the powers under Section 389 Cr. P. C. unaffected by engrafting the provisions of Section 36B of the Act. If the intention of the Parliament would have been to curtail or deprive the powers of the High Court under Section 389 Cr. P. C, specific provisions would have been inserted in the Act.
6. The learned counsel has referred to the decision of Oliver Fernando P.T. v. Assistant Collector of Madras, (1992 (1) EFR 547). In this case, the Division Bench of the Madras High Court examined the connotation of Section 32A as also as Section 32B of the Act and concluded that Section 32A of the Act refers only to the Govt. and not to the Court. By enacting Section 32A of the Act, the Parliament intended to curtail the unbridled powers of the Government exerciseable by virtue of Sections 432 and 433 Cr. P. C. to suspend, remit or commute the sentence passed against any person under the Act. Section 32B saves the powers of the High Court under Section 389 Cr. P. C. The phrase ‘so far as may be applicable’ has been interpreted in Oliver Fernando P.T.’s case (supra) to mean appeal to various Courts inclusive of Supreme Court, High Court and the Courts of Sessions. Chapter XXX deals with reference and revision. Even this Chapter embraces the powers of the High Court and the Court of Sessions, This Court in Gyanchand v. State of Rajasthan, (1993 Cri LJ 422) has upheld this view laying down that Sections 32A and 36B and 37 of the Act operate in different fields and there is no conflict between them. It was further held that the power of appellate Court under Section 389 Cr. P. C. is not curtailed by Section 32A of the Act.
7. The learned counsel also made a reference to the order of suspension passed by Hon’ble Mr. Justice V. G. Palshikar in S. B. Criminal Misc. Application No. 264 of 1995 in S. B. Criminal Appeal No. 247 of 1995, Kishnaram Gujar v. State of Raj. on 15-6-1995 by which the execution of the sentence passed against the accused under the provisions of the Act was suspended.
8. I have considered the rival submissions made at the bar. The two questions that arise for consideration before me are:
(1) Whether the provisions contained in Section 32A of the Act is a bar for the High exercising its power in the matter of granting suspensions of sentence and bail pending disposal of appeal?
(2) Whether Section 37 of the Act regulates or controls the powers exercise able by the Court under Section 389, Cr. P.C.?
In deciding the above questions, I find it appropriate to extract the relevant provisions of the Act in ad verbatim:
Section 32A. 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 committed.
Section 36B 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 Sessions trying case within the local limits of the jurisdiction of the High Court.
Section 37. (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:
(1) The Public Prosecutor has been given an opportunity to oppose the application for such released, 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 limitation on granting of bail specified in Clause (b) of 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 of bail.
1 may now refer to the case-laws relevant for deciding the above points.
9. In Berlin Joseph’s case (1992 (2) EFR-369), the above propositions were considered by a Full Bench of the Kerala High Court and it was held that it cannot be accepted that the sole object of incorporating a provision like Section 32A in the NDPS Act was to impose curb on the executive power to suspend, remit or commute the sentence passed on a particular accused. If the legislative intent in enacting Section 32A of the NDPS Act is only to curb the governmental powers under Sections 432 and 433 of the Code clear and necessary words in Section 32A would have been conveniently employed in the provision. It was further observed as under:
Instead of saying ‘notwithstanding anything contained in the Code”, Section 32A could have been worded as ‘notwithstanding anything contained in Chapter 32 of the Code’. That apart, the words ‘or any other law for the time being in force’ in Section 32A would further show that the sole aim of the provision is not to fetter exclusively the power-envisaged in Sections 432 and 433, Cr. P.C. Yet a more catching indication gatherable from the Amendment Act is that Section 37 is specifically made applicable only to a person ‘accused of an offence’ and not to a person convicted of an offence. The reasoning that the words ‘any person accused of an offence’ would include a convicted person also is not sound. The legislature would have not used the words ‘person accused of an offence’ to stretch the tentacle to a convicted person also. An analysis of the legislative exercise would show that there was some effort to explicitly exclude a convicted person from its ambit.
It was further observed as under:-
In this view of the matter, it has to be held that application of Section 32A cannot be confined to governmental powers and it applies to suspension of sentence during the pendency of appeal also. High Court has no power to suspend the sentence of a convicted person either during the pendency of his appeal or revision, unless it relates to the offence under Section 27 of the Act.
In this connection, reference was also made to Articles 72 and 161 of the Constitution of India and it was observed that if the object of Section 32A of the NDPS Act is to take away the power of the Govt. to suspend, remit or commute the sentence, the legislative exercise in enacting the said provision is practically of futility as even without Sections 432 and 433 of the Code, the appropriate Govt. can suspend, remit or commute sentences in exercise of the constitutional functions. The phrase ‘so far as it is applicable’ was interpreted to indicate that the section is not intended to invoke all the powers envisaged in the Chapter hook, lime and sinker. It was thus, held that Section 32A is extended to provide an embargo against suspension, remission and commutation of sentence of a convicted person, whether it is during the pendency of appeal or otherwise.
10. In Oliver Fernando’s case (1992 (1) EFR 547 (supra), the Division Bench of the Madras High Court examined the provisions of Sections 32A and 32B of the Act as also the provisions of Sections 389, 432 and 433, Cr. P.C. and it was observed as under:
The language of Section 32A of the Act, which speaks of suspension, remission and commutation of sentence clearly shows that it refers only to the Government and not to the Court. The bar imposed under Section 32A of the Act shows that the Parliament intended to curtail the unlimited powers of the Govt. to suspend, remit and commute the sentence since the intention of the Act is to impose deterrent punishment in order to curb the notorious activities in drug trade which affects the health and well being of human beings. Every possible effort to bring in political influence is sought to be avoided under this provision. Therefore, there is no hesitation in holding that the power available under Section 389 of the Code to suspend sentence is not taken away by Section 32A of the Act. However, the limitations contained in Section 37 of the Act will have to be borne in mind by the High Court while suspending the sentence and enlarging the accused on bail. Even at this stage, the High Court will have to bear in mind the object of the Act and it should exercise its powers with great care and caution, so that the very object of the Act is not defeated.
Consequently, it has to be held that Section 32A of the Act is not a bar of the High Court exercising in the matter of granting suspension of sentence and bail pending disposal of an appeal. The powers of suspension under Section 389 of the Code are preserved by Section 36B of the Act. Section 32A will refer only to the Government and not to Courts.
It was further observed as under:
‘This section specifically refers to Chapters XXIX and XXX of the Code of Criminal Procedure. Chapter XXIX of the Code refers to appeals to various Courts inclusive of the Supreme Court, High Court and the Court of Sessions. Chapter XXX deals with reference and revision. Even this Chapter embraces the powers of the High Court and the Court of Sessions. Since these two Chapters take within their fold Courts other than the High Court also, the words ‘so far as may be applicable’ have been used in this section. In other words, it means that the High Court may exercise the powers conferred by Chapters XXIX and XXX of the Code so far as may be applicable to it, thereby excluding the other provisions in those Chapters, which deal with the powers of Courts other than the High Court.
In Narcotics Control Bureau v. Kishanlal the apex Court while dealing with the provisions of Section 37 of the Act, and Section 439, Cr. P.C. observed that the powers of the High Court to grant bail under Section 439 are subject to the limitation contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail.
11. In Gyanchand v. State of Raj. 1993 Cri LJ 422 (supra), this Court has held that Sections 32A, 36B and 37 of the Act operate in different fields and there is no conflict between them. It was held that the power of the appellate Court under Section 389 Cr. P.C. is not curtailed by Section 32A of the Act. It was further held that the High Court can exercise its powers of suspension of sentence during the pendency of appeal subject to the conditions and limitations mentioned in Section 37 of the Act.
12. In Anwar v. State 1994 Cri LR (Raj) 797 (supra), a Division Bench of this Court examined the case of the petitioner for parole, who was convicted under Section 21 of the Act and it was held that Section 33 of the Act lays specific bar for suspension, remission or commutation of sentence awarded under the Act. It may be noted that in the above case, the impact of Section 32B of the Act was not examined.
13. Before dealing with the rival contentions of the parties, the salient features of the Act and its object may be noticed. The Narcotic Drugs and Psychotropic Substances Act, 1985 is a special law enacted by the Parliament with the object to control and regulate the operations relating to Narcotic Drugs and Psychtrophic Substances and it is for this, that stringent provisions of law were made. However, certain lacunae were noticed in the Act and are subject to the limitation contain, therefore, it was thought it proper to amend the Act providing for stringent provisions regarding bail and suspension of execution of sentence passed against the accused by the Courts. In recent years, India has been facing a problem of transit-traffic in illicit drugs. The spill over from such traffic has caused problems of abuse and addiction. The Narcotic Drugs and Psychtropic Substances Act, 1985 provides deterrent punishments for drug trafficking offences. Even though the major offences are non-bailable by virtue of the level of punishments on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it has been felt. Hence, the amendment Act No. 2 of 1989 was introduced, after defining various terms in the Act and further after defining powers of the various authorities and officers. The Actenumerates offences and penalties in Chapter IV of the Act. Section 31A of the Act provides for death penalty for certain offences committed after previous convictions. Section 32 of the Act provides punishments for offences for which no punishment is provided. Section 32A of the Act has been introduced by the Amendment Act No. 2 of 1989, which has already been quoted above. Section 33 of the Act relates to the application of Section 360, Cr. P.C. and of the Probation of Offenders Act, 1958. Section 34 of the Act deals with security for abstaining from commission of offence. Sections 36, 36A and 36B of the Act has already been quoted above, which deals with powers of the High Court conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973.
14. However, the phrase ‘so far as may be applicable’ has been used and the Madras High Court and the Kerala High Court interpreted this phrase in different ways. In Berlin Joseph’s case, the Kerala High Court held that Section 32A of the Act is not intended to invoke all the powers envisaged in the Chapter hook, line and sinker and it is extended to provide an embargo against suspension, remission and commutation of sentence of a convicted person, whether it is during the pendency of appeal or otherwise. However, in Oliver Fernando’s case (supra), the Madras High Court has held that there is no hesitation in holding that the power available under Section 389 Cr.P.C. to suspend the sentence is not taken away by Section 32A of the Act. However, the limitations contained in Section 37 of the Act will have to be borne in mind by the High Court whiile suspending the sentence and enlarging the accused on bail. It is, therefore, clear that it was only on account of different interpretations of the phrase ‘so far as may be applicable’ that the Madras and Kerala High Courts interpreted Section 32A of the Act. If the above phrase can be taken not to restrict the powers of the High Court then it can be said without contradiction that under Section 32A of the Act, the High Court can exercise the powers contained in Chapter XXIX of the Code. To me, the interpretation as given by the Kerala High Court appears to be more rational and apposite with the scheme and object of the Act but the Madras High Court has held that this section specifically refers to Chapters XXIX and XXX of the Code of Criminal Procedure and Chapter XXIX of the Code refers to appeals to various courts inclusive of the Supreme Court, High Court and the court of sessions. Since these two chapters take within their fold courts other than the High Court also, the words ‘so far as may be applicable’ have been used in this Section. In other words, it means that the High Court may exercise the powers conferred by Chapters XXIX and XXX of the Code so far as may be applicable to it, thereby excluding the other provisions in those Chapters, which deal with the powers of Courts other than the High Court. The other reason which persuaded the Kerala High Court was that it was wrongly interpreted that Section 32A only curbs the governmental powers under Sections 432 and 433 Cr. P.C. In this context, the reference was made to Articles 72 and 161 of the Constitution of India. It was held that under these provisions, the Govt. can exercise the powers of suspension, remission and commutation of sentence of the accused. It may, however, be stated that Sections 432 and 433 Cr. P.C. still contain the Governmental powers regarding suspension, remission and commutation of the sentence of an accused, notwithstanding the fact that such powers are infringed. It was, therefore, thought fit to put fetters on the Governmental powers by enacting Section 32A of the Act. The other reason that persuades me to conclude is that Section 32A of the Act applies to governmental or executive powers is that the High Court has no power to remit or suspend or commute the sentence which vests only with the Govt. under Sections 432 and 433 Cr. P.C. The words ‘suspended’, ‘remitted’ or ‘commuted’ have been used jointly. Hence, it appears reasonable to conclude that these words refer to the governmental or executive powers only, which has been restricted or curbed under Section 32A of the Act.
15. I, therefore, decide point No. 1 in the affirmative.
16. Regardiing second point, it may be stated that in Narcotics Control Bureau v. Kishanlal, 1991 Cr LR (SC) 178 the Hon’ble Supreme Court categorically held that the powers to grant bail under Section 439 Cr. P.C are subject to the limitations contained in Section 37 of the Act. In other words, the apex court has restricted the bail powers of the High Court under Section 37 of the Act. Hence, the limitations contained in Section 37 of the Act will have to be borne in mind by the High Court while suspending the sentence and enlarging the accused on bail. Even at this stage, the High Court will have to bear in mind the object of the Act and it should exercise its powers with great care and caution so that the very object of the Act is not defeated.
17. After deciding the above two points, now the question is with regard to the suspension of sentence passed in the instant case. I have carefully gone through the record and I am not persuaded to find it to be a fit case in which the powers of suspension must be exercised.
18. The application for suspension of sentence is, therefore, dismissed.