Velu Thevar vs State

Janarthanam, J.—The petitioner was an accused in C.C.No.80 of 1991 on the file of the First Additional Sessions Judge, Madurai. He, on

trial, was found guilty of the offence under S.20(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985 as

amended by Act No. 2 of 1989 - for short ''the Act''),convicted thereunder and sentenced to rigorous imprisonment for two years and to pay a

fine of Rs.10,000/-, in default, to rigorous imprisonment for one year. Aggrieved by the said conviction and sentence, he preferred Criminal

Appeal No. 109 of 1992 on the file of this Court. Along with the appeal, he also filed the present petition praying to suspend the sentence imposed

on him and release him on bail, pending disposal of the appeal.

On this petition, notice had been ordered and on receipt of notice to the State represented by the Inspector of Police, N.I.B. C.I.D., Theni,

learned Government Advocate represented the State.

Rival submissions emerged from learned counsel for the petitioner as well as learned Government Pleader as respects the question of suspension

of sentence and consequent release of the petitioner on bail.

From the rival submissions, the moot question that arises for consideration is as to whether suspension of sentence and consequent release on

bail pending appeal is legally permissible to an offender like the petitioner, convicted for an offence under the provisions of the Act.

This Act, being a special enactment to make stringent provision for the control and regulation of operations relating to narcotic drugs and

psychotropic substances in our motherland, special provisions had 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, S.37, which provides for certain stringent limitations in the matter of grant of bail

to such offenders. The said section itself starts with a non-obstante clause, namely:

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

The power of the Court is traceable to the salient provisions adumbrated under S.439 of the Code of Criminal Procedure, 1973 (Act 2 of 1974

in short ''the Code''). Sub-S.(3) of S.36-A of the Act preserves the power of the court in the matter of grant of bail by prescribing,

Nothing contained in this Section shall be deemed to affect the special powers of the High Court regarding bail wider S.439 of the Code of

Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-S.9(1) of that

Section as if the reference to ''Magistrate'' in that Section included also a reference to a ''Special Court'' constituted under S.36.

By the enactment of a provision like this, it looks as though the powers of this Court, in the matter of grant of bail under S.439 of the Code,

even in respect of offenders accused of offences under this Act, are unfettered, in the sense of such an exercise of power is not even subjected to

serious and stringent limitations, provided for under S.37 of the Act, and as if such a provision, if at all, is applicable to the other forums, namely,

the courts other than the High Courts of Judicature.

The Apex of the judicial administration of this Country, while seizing of such a situation, came to consider the power of the High Courts in the

matter of grant of bail to persons accused of offences under the Act in the decision reported in Narcotics Control Bureau v. Kishan Lal & Others

1991 Law Weekly (Criminal) 53 (SC) and the Supreme Court in paragraph 6 said thus:

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 NDPS 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 S.37 of NDPS Act are in

negative terms limiting the scope of the applicability of the provisions of Cr.P.C regarding bail, in our view, it cannot be held that the High Court''s

powers to grant bail under S.439, Cr.P.C are not subject to the limitation mentioned under S.37 of NDPS 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 S.439 Cr.P.C and S.37 of the NDPS Act, S.37 prevails. In this context S.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 powers under Cr.P.C should be subject to such special enactment. In interpreting the scope of such a statute the dominant

purpose underlying the statute has to be borne in mind. In Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others 1983 I SCR 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 any ambiguity in the language of the provision, the court should

adopt literal construction if it does not lead to an absurdity.

As already noted S.37 of the NDPS Act starts with 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 Cr.P.C should necessarily be subject to the conditions mentioned in S.37 of

the NDPS Act.

It is thus clear from what the Supreme Court has stated as above, that the power of this Court under 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 had been provided for under S.37 of the Act.

There cannot be any pale of controversy that this 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 under S.36-B of the Act, which prescribes:

The High Court may exercise to far as may be applicable, all the powers conferred by Chapters 29 and 30 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 Sessions trying

cases within the local limits of the jurisdiction of the High Court.

The two chapters referred to in that section deal with the procedural aspects in the matter of appeals, reference and revision and nothing more.

Apart from such a general provision there is one more, referable to the provision contained in S.32-A of the Act dealing with the suspension,

remission or communication of in any sentence awarded under this Act and this section reads thus:

32-A 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 S.33, no sentence awarded

under this Act (other than S.27) shall be suspended or remitted or commuted.

By a cursory look and glance of the said section, 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 therefor. 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 under 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 substances. 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 under S.389 of the Code. It has to be borne in mind at this judicature that simply because the

power of this Court under S.439 of the Code has been preserved, it does not mean such a power can be exercised de hors stringent provisions

contained in S.37 of the Act regulating the grant of bail to offenders accused of offences under the Act inasmuch 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 stags 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.

The petition, as such, deserves to be dismissed and is accordingly dismissed.