Peter and another vs State of Kerala

L. Manoharan, J.—These petitions are u/s 439 Gr. P. C. Petitioners/accused in both the cases are accused of having committed offences punishable u/s 20 (b) (I) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act''). In Crl. M. C 253 of 1993 the allegation against the petitioner is that he kept 8.5 Kgs of Ganga in two bags in his almirah in his house on 30-8-1992 and was recovered by Circle inspector of Police, Adlmall. The allegation against the petitioners in Crl. M. C 267 of 1993 is that they were found holding packets containing ganga at 9.30 p.m. on 14-10-1992. Petitioner in Crl. M C, 253/93 was arrested on 30-8-1992 and petitioners in Crl. M. C - 267/93 were arrested on 14-10-1992. It is alleged that ever after that the said petitioners are in custody. According to the petitioners. Section 37 of the Act is not applicable to this case as the period fixed in the proviso to Section 167 (2) of the Cr. P. C. is over. Reliance'' was placed on the decision in Berlin Joseph @ Ravi and another v. State and others (1992) (I) KLJ 369) (FB). It is also contended by them that, since Section 37 is applicable only to cases where the minimum sentence is five years, and as in the case of an offence punishable u/s 29 (b) (I) of the Act is not punishable with a minimum sentence of five, the offence punishable u/s 20 (b) (I) of the Act will not attract Section 37 of the Act. In support of the said argument, reliance was made on this decision in A. V, Dharmasingh v. State of Karnataka (1993 Crl. L. J. 94).

As regards the contention on the basis of the decision in Berlin Joseph''s case (1992 (I) KLJ 369) (FB) since in both the cases final reports have already been submitted, the restriction in the proviso to Section 167(2) of the Cr. P. C. is not applicable; Section 167 Cr. P. C. governs only investigation. As noted, in both the cases since the investigation is over and final report having been submitted u/s 167 Gr. P. C. is not applicable,

To appreciate the contention of the learned counsel for the petitioners that for the grant of ball conditions in section 37 of the Act need not be satisfied as the laid Section is not applicable in a case u/s 20 (b) (1) of the Act, it is necessary to read Section 20 (b) (I) and 37 of the Act. Section 20 (b) (I) of the Act reads :

Punishment for contravention in relation to cannabis plant and cannabis.- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted there under,-

(a)....

(b) produces, manufactures, possesses, sells, purchases, transports, imports inter - State, exports inter - State or uses cannabis, shall be punishable,-

(i) where such contravention relates to ganga or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to fife years and shall also be liable to fine which may extend to fifty thousand rupees;

(ii)......

(Emphasis Supplied)

Section 37 of the Act reads :

Offences to be cognizable and non-boilable. - (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 ball 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 of ball specified in clause (b) of sub-section (I) 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.

(Emphasis Supplied)

In the decision in Narcotics Control Bureau Vs. Kishan Lal and others, the Supreme Court held that the power u/s 439 Cr. P. C. is subject to section 37 of the Act. There can be no doubt that if the offence falls u/s 37 of the Act the accused has to satisfy the conditions therein so that he could be released on bail. As noticed, the contention is, the offence u/s 20 (b) (I) of the Act will not fall u/s 37 of the Act.

According to the learned counsel for the petitioners, since Section 37 of the Act speaks of an offence punishable for a term of imprisonment of five years or more the same could be applicable only in cases where the imprisonment for the offence is five years or more''. According to them, on a proper interpretation, the minimum sentence has to be five years to attract Section 37 which according to the petitioner could be discerned from the words ''or more'' which follows immediately after ''five years''. It was also their case that being a penal statute when two interpretations are possible the one in favour of the accused must be accepted. On the other hand learned Director General of Prosecution contended that, the Section on a plain reading is incapable of such an interpretation, and in the circumstance, two views as to the scope of Section a 37 is not possible since by the wording of Section 37 of the Act, the offence punishable u/s 20 (b) (I) of the Act is clearly attracted.

Learned counsel for the petitioners sought support for his argument on the meaning assigned to the word ''of in Black''s Law Dictionary Fifth Edition. There the meaning of ''of is given as a term denoting, that from which anything proceeds. According to the learned counsel for the petitioners when the said meaning is given to the word ''of'' that occurs immediately before ''five years or more'' in Section 37 (b) of the Act it would be seen that the five years mentioned therein is the start and therefore the same should be the minimum sentence. First of all in Black''s Dictionary - Fifth Edition ''of'' is stated to mean not only ''a term denoting that from which anything proceeds''; but would also mean ''indicating origin, source descent, and the like; as, he is of noble blood. Associated with or connected with, usually in some casual relation, etc....'' Therefore the word ''of in a given circumstance could acquire the meaning of relationship, source, descent etc.

At page 532 of Craies on Statute Law - 7th Edition it is stated, "where an enactment imposes a penalty for a criminal offence, a person against whom it is sought to enforce the penalty is entitled to the benefit of any doubt which may arise on the construction of the enactment."

In the decision in Tolaram Relumal and Another Vs. The State of Bombay, it is held:

The provisions of S. 18(I) of Bombay Act 57 of 1947 are penal in nature and it is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put upon a'' penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature.

The intention of the legislature is what it states to be its intention. Only when there is ambiguity in the language used can there be any occasion to discover the intention by adopting the device of interpretation. Now the question for consideration is whether these provisions admit of the meaning the petitioners seek to assign. If on a plain reading of the said Section, such a meaning cannot be assigned: the argument of the counsel for the petitioners has to be rejected.

A statutory provision has to be understood by reading it as a whole. It is not permissible to dissect a word from a provision and understand it in isolation from the other part of the provision, for phrases used in the statute would have a meaning of their own, and when the words are torn out and examined the same will not convey the true meaning; and at times such a reading could even lead to wrong conclusions.

At page 160 of the Grates on Statute Law - 7th Edition it is stated :

It is often fallacious, in considering the meaning of a phrase consisting of two words, to find a meaning which each has separately and then infer that the two together cover the combination so arrived at. The two together may have acquired a special meaning of their own.

In Section 37(b) of the ACT. "accused of an offence punishable for a term of imprisonment of five years or more" qualifies the word "person'''', the person should be accused of an offence punishable "for a term of imprisonment of five years or more". Therefore the "Five years" is a term of imprisonment. It would be unrealistic to read omitting the words "term of imprisonment" to understand "of five years or more". As noticed, such an approach would distort the actual meaning of the said phrase. in the Concise Oxford Dictionary-7th Edition the meaning of the word ''term'' is given as "Boundary, limit, esp. of time...........period of imprisonment; period over which operations are conducted or results contemplated. Therefore, the word ''term'' signifies boundary or limit etc. Evidently, therefore, the five years is the limit not the beginning. When the legislature used the words ''term of imprisonment'' it was unnecessary to add, the same it the maximum sentence, for "term of imprisonment" would show that the five years is the maximum. In Blacks Law Dictionary also ''term'' is described to mean "a fixed period; period of determined or prescribed duration. A specified period of time etc". Therefore, when Section 37 (b) of the Act speaks of "an offence punishable for a term of imprisonment of five years or more" the same could only mean, an offence which is punishable with five years or more that is; an offence punishable for a period of five years or more. Now, to accept the argument of the learned counsel for the petitioners one should read into the said Section the word ''Minimum'' just before the words ''five years'' and also omit the effect of the word "term". In the circumstance, it is not permissible to read info the said Section a word which certainly is not intended, or omits to read the word "term" which has paramount significance in interpreting the Section. The argument of the learned counsel for the petitioners misses a very vital aspect in as much as the argument seeks to ignore the words "for a term of imprisonment" in Section 37(b) of the Act. It is not inappropriate in this connection to refer to the observation of the Supreme Court in Narcotics Control Bureau Vs. Kishan Lal and others, referred to early :

In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind.

The dominant purpose is to eschew the menace of the use of narcotic drugs which has the potency to destroy the young generation.

Since Section 37 (b) of the Act takes in a person who is the accused of an offence punishable for a period up to five years or more clearly the offence punishable u/s 20 (b) (I) of the Act also is attracted. In A. V. Dharmasingh''s case (1993 Crl. L. J. 94) after adverting to the decision in Tolaram Relumal and Another Vs. The State of Bombay, referred to early, if is observed:

Interpreting the expression "punishable for a term of imprisonment for 5 years or more" in the light of the Supreme Court ruling quoted above, I am of the opinion that the expression means that the offence should be punishable with minimum of 5 years or more because the words "or more" are added only to emphasise that the offences punishable with minimum 5 years or more are to be the offence for which the provision of Section 37 of the Act is made applicable.

With great respect, I am unable to agree with the said view expressed by the learned Judge. As noticed, when Section 37 (b) of the Act states that an offence punishable for a term of imprisonment of five years, it is not possible to read the same to mean an offence punishable for a minimum period of five years. On the other hand, it could only be read as an offence punishable for a period of imprisonment of five years or more. Therefore, it has to be found that the offence punishable u/s 20 (b) (I) of the Act also is taken by Section 37 of the Act. In both these cases the materials do not satisfy the conditions-under clause (II) of section 37 (b) of the Act. There is no reasonable ground for believing that the petitioners are not guilty of the offence and that they are not likely to commit any offence while on ball. In that view, both the applications are liable to be dismissed which accordingly are hereby dismissed.