Nagalingam vs Assistant Collector of Customs and Excise, Tiruchi

Arumugam, J.—By invoking the power of this Court, empowered under Ss. 389 and 439 of the Code of Criminal Procedure, the

Petitioner/accused while preferring the appeal in this Court is seeking the relief of suspension of the sentence imposed on him by the judgment

rendered in Calendar Case Number 1 of 1992 dated 13.7.1993 by the learned Sessions Judge of Ramanathapuram Division and prays for the

grant of bail till the disposal of the appeal.

But for the important question of law involved in this petition necessitating useful legal exercise, I do not propose to enter into the controversy in

the midst of very many legal ratios held by the courts of law in this regard.

Short facts leading to the filing of the present appeal and consequent petition for suspension of sentence and bail are as follows:

Petitioner/Appellant herein, along with two others, was tried for certain offences punishable under the Customs Act and Narcotic Drugs and

Psychotropic Substances Act, in C.C. No. l of 1992 on the file of the Sessions Judge, Ramarialliapuram Division. After full trial, learned Sessions

Judge, found the other accused namely, A1 and A3 not guilty for the charges framed and tried against them but however found the

Petitioner/Appellant (A2) guilty u/s 135(1)(b)(2) of the Customs Act and Section 20(1)(b) of the Narcotic Drugs and Psychotropic Substances

Act and whereupon convicted and sentenced him to pay a fine of Rs. 2,000/- in default to undergo rigorous imprisonment for a period of six

months for the offence u/s 135(1)(b) of Customs Act and rigorous imprisonment for a period of one year with a fine of Rs. 500/- in default to

undergo rigorous imprisonment for a period of three months, for the offence u/s 20(1)(b) of the Narcotic Drugs and Psycholropic Substances Act.

Aggrieved, Petitioner/Appellant has preferred the appeal as above referred and that has been numbered as Criminal Appeal Number 434 of 1993

and during the pendency of the same, suspension of the sentence and grant of bail for the Appellant is sought for, as above referred.

3-A. The substratum of the contentions raised by Mr. Loganathan, learned Counsel appearing for the Petitioner/Appellant, is that since the

Petitioner has paid the fine amount and is canvassing the correctness and the findings of the learned Sessions Judge in the appeal preferred by him,

u/s 389 of the Code of Criminal Procedure, by the powers specifically in built in the above section of law, during the pendency of the appeal. High

Court has every power to suspend, remit or grant bail and that the said power of the High Court has not since been ousted by any other provisions

of the special enactments like the Narcotic Drugs and Psychotropic Substances Act and that the power of the High Court to grant suspension of

the sentence in the instant case and grant the bail for the Appellant, cannot be restricted by any of the provisions of the Narcotic Drugs and

Psychotropic Substances Act and that as such, the Petitioner is entitled to the relief claimed therein.

Mr. P. Rajamanickam, learned Standing Counsel for the Respondent, strongly objected the abovesaid view, on the ground, that the rigour of

Section 37 of the Narcotic Drugs and Psychotropic Substances Act, is having an overall overriding effect upon Section 389 of the Code of

Criminal Procedure and that therefore, even though the Petitioner has preferred the appeal challenging the correctness and propriety of the

impugned judgment rendered by the trial court, this Court cannot grant the relief of suspension of sentence and bail and as such, the reliefs claimed

on behalf of the Petitioner are totally misplaced.

In the light of the above bone of contentions made on behalf of the respective parties the only question which arises for consideration in this

petition is whether the High Court, during the pendency of an appeal preferred against the conviction and sentence rendered by a Special Judge for

the proved offences under the Narcotic Drugs and Psychotropic Substance Act, has got power to suspend the sentence imposed and

consequently grant the bail to the Petitioner or not?

Point: In so far as the merits of the appeal on factual or legal aspects are concerned, it cannot be decided in this petition. However, it is

worthwhile to note at this stage, to say so, taste the full trial, learned Sessions Judge, has found the Petitioner guilty for the offences under the

relevant provisions of the Narcotic Drugs and Psychotropic Substances Act as well as Customs Act and therefore, the judgment rendered by the

learned trial Judge ex-facie raises a presumption that the Petitioner/accused has committed the offences and accordingly, he is convicted and

sentenced to. Unless and until the appeal is heard on merits and disposed of with the result of for or against, it cannot be under law presumed that

the Petitioner/Appellant is innocent. It is this cardinal principle of criminal jurisprudence with regard to the presumption of innocence emerged till

the impugned judgment was delivered and that has now been changed in view of the judgment of conviction and sentence and that therefore, it can

be safely presumed till the disposal of the appeal, the Petitioner/Appellant has committed the offence as provided under the Narcotic Drugs and

Psycholropic Substances Act as well as Customs Act.

In the light of the above position, no argument was advanced at the Bar with regard to the merits, factual aspects and correctness of the

impugned judgment in this petition.

To appreciate the controversy, which is legal and which assumes much more significance, adverting of Section 389 of the Code of Criminal

Procedure (hereinafter referred to as the Code) has become absolutely necessary, which runs as follows:

Suspension of sentence pending the appeal; release of Appellant on bail. (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.

(3) Where the convicted person satisfied the Court by which he is convicted that he intends to present an appeal, the Court shall

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence or which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on

bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the

Appellate Court under sub-S. (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the Appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall

be excluded in computing the term for which he is so sentenced.

A plain reading of the above Section makes it clear that the power vested with the High Court that pending any appeal by a convicted person

for the reasons to be recorded in writing, the execution of sentence imposed by the impugned judgment can be suspended and that if the Appellant

has already been confined to jail, he can be released on bail and thus, the power vested with the High Court has become so wide. In this context, it

has become necessary to advert to Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as

N.D.P.S. Act) which reads as follows:

32A. No suspension remission or commutation in any sentence awarded under this Act. Notwithstanding any thing contained in the Code of

Criminal Procedure, 1973 (2 of 1974) 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.

At this juncture, it is relevant to note that this Section 32A has been inserted by the N.D.P.S. (Amendment) Act No. 2 of 1989 in the context and

consideration that in the recent past, drug abuse and illicit traffic in narcotic drugs and psychotropic substances has increased inspite of deterrent

and stringent punishment provided in the old Act and to meet the difficulties, this section along with various other sections were incorporated by the

Amended Act.

This Section enjoins, that no sentence awarded under this Act other than Section 27 shall be suspended or remitted or commuted

notwithstanding anything contained in the Code as amended by Act 2 of 1974 or any other law for the time being in force with respect to the

provisions of Section 33 of this Act. But, it is seen, that Section 33 or the Act makes Section 360 of the Code applicable, pertaining to the

Probation of Offenders Act and that as such, the sentence awarded u/s 27 of the present Act has been saved from the operation of this section for

the reason that the unholy alliance between the drug loads and smugglers of the narcotic drugs and psychotropic substances, if there is any as

claimed by some persons, would be broken by this provision because the power of the politicians to grant remission has been taken away. Ss. 432

to 435 of the Code empower the Central and the State Governments to exercise the power of suspension, remission and commutation of sentence.

However, it is manifest that this section takes away the power of the respective Governments to take the concept of suspension remission or

commutation of sentences except u/s 27 of the Act and further except with the power vested with the President and Governor respectively under

Articles 72(1) and 161 of the Constitution of India. Pertinent at this juncture. It is worthwhile to refer to the Full Bench decision of the Kerala High

Court in Berlin Joseph (a) Ravi v. State (1992 (1) Crimes 1221). At page 1223, where the Bench has observed as follows:

S. 32A . No suspension, remission or commutation in any sentence awarded under this Act -Notwithstanding anything contained in the Code of

Criminal Procedure, 1973(2 of 1974), 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.

Offences to cognizable and non bailable -(I) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):-

(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 cl.(b) of sub-S. (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.

The contention based on Section 36-B is that since High Court has ""all the powers"" conferred by Chapters 29 and 30 of the Code, High Court

has also power to suspend the sentence passed on a convicted person by exercising powers u/s 389 of the Code Section 389 falls within Chapter

29 of the Code. Section 389 of the Code provides that pending appeal by a convicted person, the appellate court may order that execution of the

sentence appealed against be suspended. According to the learned Counsel, Section 32A of the N.D.P.S. Act can have application, in the

aforesaid background, only to ""suspension, remission and commutation of sentences"" referred to in Ss. 432 and 433 of the Code which fall within

Chapter 32 of the Code. Counsel invited our attention to the main title given to Chapter 32 of the Code as ""Execution, suspension, remission and

commutation of sentences"". The sub-title given to the ''E'' division in the Chapter is ""suspension, commutation and remission of sentences"". As

powers of the High Court while dealing with an appeal (provided in Chapter 29 of the Code) are well preserved, the legislative intention is not to

whittle down the High Court''s power to suspend the sentence during pendency of appeal, according to the learned Counsel. We will examine the

tenability of this contention now.

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 matter to which executive power of the Union extends. Article 161 contains

similar power which Governor 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 the Supreme Court has held in Maru Ram and Others Vs. Union of India (UOI) and

Others, that power under Articles 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 of the Supreme Court in Kehar Singh and

Another Vs. Union of India (UOI) and Another, . Thus, the position relating to Articles 72 and 161 of the Constitution, as interpreted by the

Supreme 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 Section 32-A of the N.D.P.S. 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 Ss. 432 and 433 of the Code, the

appropriate Government can suspend, remit or commute sentences in exercise of the constitutional functions. For this reason, firstly, we are not

impressed by the contention that the sole object of incorporating a provision like Section 32-A in the N.D.P.S. Act was to impose curb on the

executive power to suspend, remit or commute the sentence passed on a particular accused.

Next is, legislative intent in enacting Section 32-A of the N.D.P.S. Act is only to curb the governmental powers under Ss. 432 and 433 of the

Code, clear and necessary words in Section 32-A would have been conveniently employed in the provision. Instead of saying ""notwithstanding

anything contained in the Code"", Section 32-A could have been worded as ""notwithstanding anything contained in Chapter 22 of the Code"". That

apart, the words or any other law for the time being in force in Section 32-A would further show that the sole aim of the provision is not to fetter

exclusively the power envisaged in Ss. 432 and 433 of the Code.

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 of Padmanabhan, J. on this score, is that the words ""any person accused

of an offence"" would include a convicted person also.

The provision reads thus:

Notwithstanding anything contained in the Code of Criminal Procedure, 1973(Central Act 2 of 1974), no person accused or convicted of an

offence under sub-S. (1) or sub-S. (3) shall, if in custody, be released on bail or on his own bond unless (similar conditions provided).

Thus in similar provisions in other statutes ""convicted person"" is also specifically included in addition to ""accused person"". This exclusion from

Section 37 of the N.D.P.S. Act in that background, is not without any reason or rationale. It is because the case of a convicted person is covered

elsewhere (in Section 32-A) that the legislature wanted to exclude him from the scope of Section 37. It can not be assumed that Parliament wanted

an accused person to be enmeshed under more stringent rigours than convicted persons.

In support of the argument that Section 32-A is not intended to take away the High Court''s power to suspend sentence, main thrust was laid

on Section 36-B. The said section, no doubt, empowers the High Court to exercise the powers envisaged in Chapter 29 of the Code. But does it

empower the High Court to exercise all the powers envisaged in that said Chapter? It must be borne in mind that the section has advisedly used the

rider words ""so far as it is applicable"" in order to indicate that the section is not intended to invoke all the powers envisaged in the Chapter hook,

line and sinker. If that part of Section 389 of the Code which deals with discretion of the High Court to suspend the sentence is not applicable,

then Section 36-A of the N.D.P.S. Act is not a carte blanche to exercise all powers conferred on the appellate court by virtue of Chapter 29 of

the Code.

To which the legislative intent, it is permissible for courts to take into account ""Objects and Reasons"" presented while introducing the Bill

before the legislature. Such a course was considered not desirable a decade ago, but ""the recent trend in juristic thought in western countries"" had

led our courts also to take into account ""everything which is logically relevant"" while interpreting the provisions of a statute (Vide K.P. Varghese

Vs. Income Tax Officer, Ernakulam and Another, and Hindustan Paper Corporation Ltd. v. Government of Kerala ( 1985 K.L.T. 915).

Statement of Objects and Reasons for introducing Bill No. 125/88 in the Lok Sabha (which later became Act 2 of 1989) was published in the

Gazette of India (6th December, 1988). One of the statements is thus:

Eventhough 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 N.D.P.S. Act, 1985 the need to amend the law to further strengthen it, has been

felt.

The aforesaid statement, when read along with the scheme of the amended provisions helps to discern that Section 32-A is intended 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.

Sri M.M. Sukumaran Nayar, learned Counsel tried to show that the aforesaid interpretation would lead to hazardous consciences. He cited

one possibility like this: Even u/s 37 bail can be granted in cases where the offence is punishable for a term of less than five years, but if he is

convicted of that offence, his sentence (which may be a short term imprisonment) cannot be suspended, when his appeal is pending. In this context,

we have to make a special note of a parenthetical clause included in Section 32-A which reads thus: ""(other than Section 27)"". The said words in

parenthesis make it clear that a sentence passed for an offence u/s 27 can be suspended in exercise of powers under Chapter 29 of the Code.

Section 27 deals with punishments for relatively minor offences under the N.D.P.S. Act. In fact, a reading of the aforesaid parenthetical clause

fortifies the interpretation that Section 32-A in its generality is intended to operate against suspension of sentence at any stage either by the High

Court or by any other authority.

For the aforesaid reasons, we agree with the view adopted by Pareed Pillay, J. in Phasalu v. State of Kerala (1991 (2) K.I.T. 787) that

application of Section 32-A 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 convicted person either during the pendency of his appeal or revision, unless it relates to

the offence u/s 27.

Thus, the Full Bench of the Kerala High Court, after having elaborately discussed the pros and cons and ambit of Section 32-A in the context of

Section 36-B of the N.D.P.S. Act and Section 389 of the Code, has pronounced the law, that Section 32-A cannot be confined to the

governmental powers alone and that for the said reasoning, the High Court has no power to suspend the sentence of a convicted person either

during the pendency of an appeal or a revision unless it relates to an offence u/s 27 of the N.D.P.S. Act.

While dealing with a similar application for suspension of sentence and release on bail pending disposal of the appeal filed by an accused, who

was convicted u/s 8(c) read with 21 of the N.D.P.S. Act, in Kantilal Jain v. Assistant Collector, C.I.U. Mudurui (1991 L.W. (Crl.) 563), a

Division Bench of this Court, has declined to grant the relief of suspension of sentence and release of bail pending disposal of the appeal, as was

held by the Full Bench of the Kerala High Court but however, the Division Bench of this Court came to the said conclusion on different but quite

contra reasonings. My learned brother, Somasundaram, J. sneaking on behalf of the Division Bench, in the above referred case law, has observed

(at page 566) as follows:

In view of the ruling of the Apex Court in Narcotics Control Bureau v. Kbhanlal and Ors. 1991 L.W (Crl.) 53 S.C. it has to be held that the

decision of the Division Bench of this Court in P.T. Oliver Fernando v. Assistant Collector of Madras (1990 L.W.(Crl.) 357), is no longer good

law so far as the law as stated by the Division Bench or this Court in the answer rendered with regard to the 1st question referred to them, which is

extracted supra. However, the law as laid down by the Division Bench in the answer to the second question extracted supra is not affected by the

decision of the Supreme Court in Narcotics Control Bureau v. Kbhanlal and Ors. (1991 L.W.(Crl.) 53 S.C.). We are also in respectful agreement

with the view expressed by the Division Bench with regard to the question No. 2 that Section 32-A of the Act is not a bar for the High Court

exercising its powers in the matter of granting suspension of sentence and bail pending disposal of an appeal and that the powers of suspension u/s

389 of the Code are preserved by Section 36-B of the Act. While answering the second question referred to the Division Bench,

Sivasubramaniam, J., has further observed as follows:

Therefore, we have no hesitation in holding that the power available u/s 389 of the Code to suspend the sentence is not taken away by Section 32-

A of the Act. However, we must add that 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.

However, the Apex Court in Narcotics Control Bureau v. Kishanlal and Ors. 1991 L.W.(Crl.) 53 S.C. has held that:

Consequently, the power to grant bail under any of the provisions of Code of Criminal Procedure should necessarily be subject to the conditions

mentioned in Section 37 of the N.D.P.S. Act.

From the above observations of the Supreme Court it follows that the powers of the High Court to grant bail under any of the provisions of the

Code should necessarily be subject to the conditions mentioned in Section 37 of the Act. Consequently we have to hold that the powers of the

High Court to grant suspension and bail u/s 389 of the Code are also subject to the limitations and restrictions mentioned in Section 37 of the Act.

The Division Bench of this Court in P.T. Oliver Frnimdo v. Assistant Collector of Madras I (1990 L.W.(Crl.)357) also nowhere says that the

powers of the High Court to grant suspension and bail u/s 389 of the Code pending disposal of the appeal against conviction for offences under the

Act, are not subject to the restrictions mentioned in Section 37 of the Act. On the other hand, the Division Bench clearly says that 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 and that the limitations contained in Section 37 of the Act will have to be borne in mind while suspending the sentence and enlarging the

accused on bail. The contention of the learned Counsel for the Petitioner that the limitations prescribed by Section 37 of the Act will apply only to

a person who is accused of an offence under the Act and not to a person who is convicted for offences under the Act and who has filed an appeal

against the conviction of the sentence and bail u/s 389 of the Code, cannot be countenanced because, as rightly contended by the Central

Government Public Prosecutor that a person does not cease to be a person accused of an offence under the Act merely because he has been

convicted by the trial court for offences under the Act and the appeal filed by him against the conviction and sentence is pending before the High

Court. Further Section 389 of the Code deals with the power of the High Court to order suspension of sentence pending appeal and release of the

convicted person on bail. As already pointed out, the Apex Court in clear terms has laid down that the power to grant bail under any of the

provisions of the Code should necessarily be subject to the conditions mentioned in Section 37 of the Act. From the above discussion it emerges

that Section 32-A is not a bar for the High Court exercising its powers in the matter of granting suspension of sentence and bail pending disposal of

the appeal in as much as the powers of suspension u/s 389 of the Code are preserved by Section 36-B of the Act and that Section 32-A will refer

only to the Government and not to the courts. However, the powers of the High Court in the matter of granting suspension of sentence and bail

pending disposal of the appeal u/s 389 of the Code are also subject to the restrictions contained in Section 37 of the Act.

Thus, a plain reading of the decision rendered by the Division Bench of this Court stated supra, makes it abundantly clear that the power of the

High Court to suspend the sentence imposed upon an accused and grant bail during the pendency of the appeal preferred by him is restricted by

virtue of Section 37 of the N.D.P.S. Act and that therefore, during the pendency of the appeal, no sentence awarded under the N.D.P.S. Act can

be suspended and bail granted. If the cumulative effect of the decisions rendered by the Full bench of the Kerala High Court and the Division

Bench of this Court stated supra are juxtaposed, it is made clear that during the pendency of an appeal, filed canvassing against the judgment of

conviction and sentence passed under the N.D.P.S. Act, the sentence cannot be suspended and no bail can be granted and that was the consensus

of law held by both courts, however, on different reasonings.

It has also become necessary to refer to the decision rendered by a learned single Judge of this Court in Velu Thevar v. State represented by

the Inspector of Police, N.I.B.C.I.D., Theni (1992 L.W. (Crl.) 187). While dealing with the scope of Ss. 32-A, 33 and 37 of the N.D.P.S. Act in

the context of Section 437 of the Code, my learned brother, Janarthanam, J. has held in the above citation as follows:

The N.D.P.S. Act, being a special enactment to make stringent provision for the control and regulation of operations relating to narcotic drugs and

Psycholropic substances in our motherland, special provisions have been made relating to the release on bail of offenders accused of an offence

under the Act, in the shape of enactment of a provision, namely, Section 37, which provides for certain stringent limitations in the matter of grant of

bail to such offenders.

By a cursory look and glance of Section 32-A, although it may appear that the section does empower the Court to grant suspension of sentence, it

is not really so and the same will be patent if a little bit of further probe is made therefore. It may be recapitulated at this juncture that two specific

provisions in the shape of Ss. 432 and 433 had been enacted in the Code as respects suspension, remission and commutation of sentence. Those

two sections recognise the power of the State Government to suspend, remit or commute the sentence of persons convicted of an offence and

undergoing the incarceration in jail. It is with a view to curtail the executive power of the Government in the matter of suspension, remission and

commutation of sentence of persons convicted of an offence under this Act, a special provision u/s 32-A of the Act has been enacted by the

introduction of a non-obstante clause in the said section namely, ""Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2

of 1974)"", obviously in a bid to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic

sub-stances. As such, there is no express exclusion of the power of this Court in the matter of suspension of sentence of offenders convicted of

offence, which had been recognised u/s 389 of the Code. It has to be borne in mind at this juncture that simply because the power of this Court

under Section439 of the Code has been preserved, it does not mean such a power can be exercised de hors stringent provisions contained in

Section 37 of the Act regulating the grant of bail to offenders accused of offences under the Act in as much as suspension of sentence of offenders

convicted under the Act pending appeal involves grant of bail.

It is to be remembered that the materials available as against a person accused of an offence under this Act prior to and during the stage of trial

can, in the eye of law, be construed as prima facie materials capable of proving the alleged commission of the offence during trial. After the stage of

trial, such materials get sanctified as evidence proving the commission of the offence by the offenders till their conviction and sentence are set aside

on appeal. In such state of affairs, it cannot be stated that there are reasonable grounds, at the stage of consideration of suspension of sentence

pending appeal, for coming to the conclusion that he is not guilty of the offence in respect of which he had been convicted and sentenced, leave

alone the other ground that he is not likely to commit any offence while on such bail.

In this view of the matter, there is no justification for the suspension of sentence imposed on the Petitioner herein and order for his release on

bail pending disposal of the appeal.

In the context of the case law above referred on this subject, my attention was drawn to an order passed by a learned single Judge of this

Court in Crl.M.P. No. 1797 of 1993 in C.A. No. 169 of 1993, dated 29.7.1993 held between one Muruganandam v. State by Asst.

Commissioner of Police, Royapuram Range, Madras. For the same relief claimed therein and by referring the above case law on the subject

involving Ss. 32A, 33 of the N.D.P.S. Act with Section 389 of the Code on the one hand and Section 37 of the N.D.P.S. Act on the other hand,

my learned brother, Bellie, J. though agreed that during the pendency of any appeal or revision, as provided u/s 32-A of the N.D.P.S. Act no

sentence awarded under the N.D.P.S. Act can be suspended, remitted or commuted by virtue of Section 389 of the Code, however, referred the

matter to be considered by a Full Bench of this Court to decide the point whether the High Court can or cannot, in view of Section 32-A of the

N.D.P.S. Act suspend the sentence awarded in that case u/s 21 of the Act, in exercise of its power u/s 389 of the Code of Criminal Procedure.

While saying so, learned Judge, in the above order dwells his mind upon the observations made by the Full Bench of the Kerala High Court in

Berlin Joseph v. State 1992 II Cri 353 regarding Section 36-B of the Act and Chapter XXIX of the Code, pertaining to the following

observations:

It must be borne in mind that the section has advisedly used the rider words ''so far as it is applicable'' in order to indicate that the section is not

intended to invoke all the powers envisaged in the Chapter hook, line and sinker.

In this context, however the reasonings given by the Full Bench of the Kerala High Court and the Division Bench of this Court as above referred in

the context of the clear finding given by a single Judge of this Court, it has to be seen that courts of law in all the above cases, are unanimous in

their conclusion that during the pendency of appeal or revision preferred against the conviction of an accused for the offences under the N.D.P.S.

Act, no sentence of imprisonment can be suspended, remitted or commuted for the reason of the total embargo provided either by Section 37 of

the N.D.P.S. Act or Section 32-A of the said Act. By scanning and following the above case laws, I am able to identify that courts of law have

differed in their opinion in giving reasons for arriving at such conclusion but however, they are all unanimous in the conclusion that no sentence

awarded for the offences under the N.D.P.S. Act can be suspended remitted or commuted during the pendency of the appeal or revision.

Therefore, in this context, I am of the firm view, that the reference made by my learned brother Bellie, J. for the consideration of the Full Bench is

of no consequence in following the same line as enunciated by the case laws above quoted.

It is significant to note that while dealing with the scope and object of Section 37 of the N.D.P.S. Act, the Apex Court in Narcotics Control

Bureau v. Kishan Lal and Ors. (1991 L.W.(Crl.)53 (S.C.), has observed as follows:

S. 37 as amended starts with a non-obstante clause stating that Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no

person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The N.D.P.S. Act

is a special enactment and as already noted it was enacted with a view to make stringent provisions for the control and regulation of operations

relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of

N.D.P.S. Act are in negative terms limiting the scope of applicability of the provisions of Code of Criminal Procedure regarding bail, in our view, it

cannot be held that the High Court''s powers to grant bail u/s 439 Code of Criminal Procedure are not subject to the limitation mentioned u/s 37 of

N.D.P.S. Act. The non-obstante clause with which the section starts should be given its due meaning and clearly it is intended to restrict the

powers to grant bail. In case of inconsistency between Section 439 Code of Criminal Procedure and Section 37 of the N.D.P.S. Act, Section 37

prevails. In this context Section 4, Cr.P. C. may be noted which reads thus:

(4) Trial of offences under the Indian Penal Code and other laws: (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated,

inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be

investigated, inquired into, tried, and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force

regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such

offences, the other offences under Code of Criminal Procedure should be subject to such special enactment. In interpreting, the scope of such a

statute has to be borne in mind. In Lt. Tool Prithi Pal Singh Bedi etc. v. Union of India 1983 I S.C.R. 393 regarding the mode of interpretation, the

Supreme Court observed as follows:

The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised canons of construction is that

the legislature speaks its mind by way of correct expression and unless there is ambiguity in the language of the provision, the court should adopt

literal construction if it does not lead to an absurdity.

As already noted Section 37 of the N.D.P.S. Act starts with a non-obstante clause stating that notwithstanding anything contained in the Code of

Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are

satisfied. Consequently the power to grant bail under any of the provisions of Code of Criminal Procedure should necessarily be subject to the

conditions mentioned in Section 37 of the N.D.P.S. Act.

In view of the declaration of law by the Apex Court, as above extracted, it is clinching, that the power of the High Court u/s 439 of the Code in the

matter of grant of bail to persons accused of an offence under this Act is subject to the limitations that have been provided u/s 37 of the Act.

If the above position is necessarily to be accepted and followed by all the High Courts in the context of the clear declaration by the Apex

Court in the above ruling, then in the context of the non-obstante clause provided in Section 32-A ""Notwithstanding anything contained in the

Code of Criminal Procedure, 1973 (2 of 1974) 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."" it has to be followed that the same

rationale can be adopted in so far as Section 32-A also and its special mandate built therein over the powers vested u/s 389 of the Code: It is seen

that there cannot be any controversy that the N.D.P.S. Act does not contain any provision as regards the suspension of sentence of persons

accused of and subsequently convicted on trial pending appeal, and if at all any provision is there, it is only traceable to the general provision as

regards the appeal and revision, as had been provided for u/s 36-B of the Act. As was held by a learned single Judge of this Court, the two

chapters referred to in Section 36-B of the Act, namely, chapters 29 and 30 of the Code of Criminal Procedure 1973, deal only with the

procedural aspects in the matter of appeal, reference and revision and nothing more and that besides there is more apt provision contained in

Section 32-A dealing with the suspension, remission or commutation of the sentences. Of course, it is true that Section 32-A of the Act does not

empower the Court manifestly to grant suspension of sentences. But in reality it can be recapitulated the scope of provisions of Ss. 432 and 433 of

the Code with regard to suspension, remission and commutation of sentences and that the said sections recognise the power of the State

Government only to suspend, remit or commute the sentences of persons convicted of offences. As was held in the above rulings, it was made only

with a view to curtail the executive power of the Government in the matter of suspension, remission and commutation of sentence of persons

convicted of offences under this Act, but however, it is seen, that a special provision u/s 32-A of the Act has been enacted by the Parliament by

the introduction of the non-obstante clause as above referred, in an effort to make stringent provisions for maintaining the objects and preamble

adumbrated in enacting the N.D.P.S. Act. It is thus seen, after having carefully considered and scanned the legal aspects and ratios enunciated in

the above case laws regarding the scope of Ss. 32-A and 37 of the N.D.P.S. Act, I am entirely in agreement with the views of my learned brother

Janarthanam, J. in this view of the matter above discussed with reference to case laws, I am of the firm view that there is no justification for

suspending the sentence imposed on the Petitioner herein and order for his release on bail pending disposal of the appeal. The point is answered

accordingly.

In the result, the petition fails and accordingly, it is dismissed.