Phasila v. State of Kerala — 1991 DIGILAW 289 (KER)

Judgment :- Pareed Pillay, J. The short question that arises foe consideration is whether an accused who is tainted and sentenced under the Narcotic Drugs and Psychotropic Substances Act, S5 (for short 'the N.D.P.S. act) other than under S.27 is entitled to suspension of intense pending appeal. 2. Contention of the petitioners is that under S.389 of the Code of Criminal judiciary this Court has wide powers to suspend the sentence under the N.D.P.S. Act ring the pendency of the appeal not-withstanding S.32-A of the Act. S.389(1) wades that pending any appeal by a convicted person, the Appellate Court may, for icons to be recorded by it in writing, order that the execution of the sentence or order pealed against be suspended and, also if he is in confinement, that he may be released bail or on his own bond. Counsel pointed out that S.37 of the N.D.P.S. Act has no placation to a case where the accused has already been convicted and when he files appeal and moves for suspension of the sentence. S.37(1)(b) postulates notice to : Public Prosecutor on any motion for bail. S.37(1)(b)(ii) provides that after giving twice to the Public Prosecutor bail can be granted if Court is satisfied that there are stainable grounds for believing that the accused is not guilty of such offence and that s not likely to commit any offence while on bail. S.37 contains a non-obstante clause the effect that it overrides the provisions for bai! under the Cr.P.C. In Narcotics enroll Bureau v. Kishan Lai (1991 (1) K.L.T. 547) the Supreme Court held that the savers to grant bail under S.439 are subject to the limitations contained in the amended 7 of the N.D.P.S. Act and restrictions on the powers of the Court under the said Section applicable to the High Court also in the matter of granting bail. There cannot be any but that S.37 of the N.D.P.S. Act is not applicable to case where an accused has already ai convicted and when he files appeal and seeks suspension of the sentence. 3. The question whether a person convicted and sentenced under the N.D.P.S. t is entitled to get the sentence suspended during the pendency of the appeal cannot determined having recourse to S.37. 3. The question whether a person convicted and sentenced under the N.D.P.S. t is entitled to get the sentence suspended during the pendency of the appeal cannot determined having recourse to S.37. Stand of the Public Prosecutor is that in view of 2-A of the N.D.P.S. Act the appellate court has no power to suspend the sentencing the pendency of the appeal S.32-A reads: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of '4), or any other law for the time being in force but subject to the provisions of S.33, no sentence girded under the Act (other than S.27) shall be suspended or remitted or commuted." 3 of the N.D.P.S. Act provides that S.360 of the Cr.P.C. or the Probation of Offenders t, 1958 shall not apply to any person convicted of an offence under the Act unless such son is under eighteen years of age or that the offence for which such person is convicted mislabel under S.26 or S.27. S.26 deals with punishment for certain acts by licensee his servants. S.27 is concerned with the punishment for illegal possession in small misty for personal consumption of any narcotic drug or psychotropic substance or assumption of such drug or substance. 4. Petitioners contend that S.32-A has no application so far as the appellate Court is concerned as it is obviously intended to meet a situation of suspension, remission or commutation of sentence by the Government as provided under Ss.432 and 433 of the Cr.P.C. S.432 empowers the appropriate Government to suspend or remit sentence. S.433 enables the appropriate Government to commute the sentence. In other words, petitioners' stand is that S.32-A does not fetter the powers of the appellate Court to suspend the sentence pending appeal. 5. From a reading of S.32-A of the N.D.P.S. Act it is not possible to hold that the interdict regarding suspension of the sentence is confined only to the Government and not to the appellate Court. The section does not confine its ambit to the suspension of sentence by the Government. The section does not make any distinction between the suspension of sentence by the appellate Court and the Government. Of course, appellate Court's power of suspension of sentence is limited to a case where the convicted accused has filed appeal. The section does not confine its ambit to the suspension of sentence by the Government. The section does not make any distinction between the suspension of sentence by the appellate Court and the Government. Of course, appellate Court's power of suspension of sentence is limited to a case where the convicted accused has filed appeal. Suspension of sentence by the appellate Court can only be till the appeal is disposed of whereas suspension of sentence by the Government is not thus limited. Except that difference S.32-A does not indicate of any difference regarding suspension of sentence by the appellate Court or the Government. The argument that S.32-A has no application to the power of the appellate Court regarding suspension of sentence cannot be accepted. It is the well settled legal principle that words, phrases and sentences of a statute should ordinarily be understood in their natural, ordinary, popular and grammatical meaning unless it would lead to an absurd result or the object of the statute indicates a totally different meaning. Even if two interpretations are possible, the one which fits in with the object of the statute has to be adopted. As held by the Supreme Court in Vijayawada Municipal Council v. A.P.S.E. Board (1976-4-S.CC. 548) the salutary rule of construction rests upon the doctrine that a statute like any other document, must be read as a whole to extract its meaning and intendment correctly. If S.32-A is held applicable only to suspension of sentence by the Government, it would lead to a ridiculous and anomalous position. Thus, where a person is accused of an offence under the Act S.37 makes the provision for the grant of bail very arduous whereas when a person is convicted, be would not face that much difficulty in getting bail. While interpreting a section, it is elementary that it should be considered in the backdrop of the entire statute and a particular section cannot be read in isolation. S.32-A interdicts suspension of the sentence and as no differentiation is made with regard to that power to be exercised either by the Government or the Court, the argument that the Court is vested with the power to suspend the sentence and the section has no application cannot be sustained. 6. S.32-A interdicts suspension of the sentence and as no differentiation is made with regard to that power to be exercised either by the Government or the Court, the argument that the Court is vested with the power to suspend the sentence and the section has no application cannot be sustained. 6. As S.32-A of the N.D.P.S. Act envisages that notwithstanding anything contained in the Criminal Procedure Code or any other laws for the time being in force sentence cannot be suspended and as it applies equally to the appellate Court, there is no merit in the contention of the petitioners that the appellate Court has unfettered power to suspend the sentence pending appeal. Even though S.36-B of the Act provides that the High Court has all powers under Chapters XXIX and XXX of the Cr.P.C, S.32-A of the N.D.P.S. Act makes the position manifestly clear that the High Court has no jurisdiction to suspend the sentence. It therefore follows that the High Court is not clothed with the power under) N.D.P.S. Act to suspend sentence awarded under the Act except under S.27. In the result, the petitions are dismissed. Balakrishnan, J. I had the advantage of reading the draft order of my noble and learned brother M.M. Pareed Pillay, J. and as I do not agree on certain issues, add this separate order. 2. The question in controversy is whether High Court has power under S.389 Cr.P.C. to suspend sentence pending appeal incase where the accused is found guilty of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the act) and sentenced for a term of imprisonment of 5 years or more. 3. One contention raised is whether S.37 of the Act curtails the power of the High Court in suspending the sentence. I do not think that S.37 of the Act has any application. S.37 of the Act reads: "37. 3. One contention raised is whether S.37 of the Act curtails the power of the High Court in suspending the sentence. I do not think that S.37 of the Act has any application. S.37 of the Act reads: "37. Offences to be cognizable and non-bailable- (1) 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 - (1) 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 bail specified in clause (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." (emphasis supplied) 4. S.37 deals with the power of the court in granting bail during the pendency of trial. It has been held in Narcotics Control Bureau v. Kishan Lai (1991(1) K.L.T. 547), reference to which has been made by my learned brother, that the N.D.P.S. Act being a special enactment, the provisions therein should prevail over the general enactments and the non obstante clause must be given its due importance, and on this basis it was held that the power of the High Court to grant bail under S.439Cr. P.C. is subject to the limitations contained in the amended S.37 of the Act. While suspending the sentence and granting bail S.439 of the Code as such does not come into play. So also, S.37 of the Act has no application, as the question of suspension arises after the trial stage is over. 5. No provision has been made in the Act just as in Rule 184 of the Defence and Internal Security of India Rules, 1971, curtailing the powers of the High Court under S.389 of the Cr.P.C. Rule 184 of the Defence and Internal Security of India Rules, 1971 reads: "Rule 184. 5. No provision has been made in the Act just as in Rule 184 of the Defence and Internal Security of India Rules, 1971, curtailing the powers of the High Court under S.389 of the Cr.P.C. Rule 184 of the Defence and Internal Security of India Rules, 1971 reads: "Rule 184. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898) no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this behalf, the Court is satisfied and there are reasonable grounds for believing that he is not guilty of such contravention." (emphasis supplied) S.37 of the Act is not worded like that. The above provision clearly refers to accused as well as convicted person. Therefore, I am of the view that the High Court can suspend the sentence in a case where the accused is convicted by the Sessions Court or by a Special *Court, for an offence punishable under the Act, even if the sentence of imprisonment is more than 5 years. This does not mean that the High Court should invariably suspend the sentence and grant bail in all cases. The power of the court has to be used sparingly and under exceptional circumstances. The mandate of the enactment is that the accused should not be released even at the stage of trial. Therefore, in a case where the accused is found guilty of the offence under the Act the High Court should view the matter strictly and the sentence is to be suspended only under very exceptional circumstances. 6. Another contention urged by the learned Public Prosecutor is that S.32-A of the Act completely takes away the right of the High Court to suspend the sentence. 6. Another contention urged by the learned Public Prosecutor is that S.32-A of the Act completely takes away the right of the High Court to suspend the sentence. S.32-A reads: "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." S.32-A also is not intended to curtail the powers of the High Court under S.389 of the Code. S.32-A is to abrogate the powers of the Central or State Government vested in the mender Ss.432 and 433 of the Code of Criminal Procedure, 1973. That is evident from the words used in S.32-A of the Act. Under Ss.432 and 433 of the Code powers are conferred on the appropriate governments to suspend or remit sentences. Similar powers are not conferred on the High Court. Under S.386 of the Code the power of the appellate court in an appeal from conviction include only reversing the finding and sentence, acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such appellate court or alter the finding and maintaining the sentence or without altering the finding alter the nature and extent of the sentence, but not to enhance the same. There is no power of suspension, remission or commutation as such conferred on the High Court, except to suspend the sentence temporarily pending appeal as postulated under S.389 of the Code. 7. There is no power of suspension, remission or commutation as such conferred on the High Court, except to suspend the sentence temporarily pending appeal as postulated under S.389 of the Code. 7. Another relevant clause apposite at this juncture is S.36-B of the Act, which reads: "36-B. Appeal and revision - The High Court may exercise, so far as may be applicable, all the powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court 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." The above provision would indicate that the High Court has got all the powers conferred on it under Chapter XXIX of the Code while dealing with an appeal preferred against conviction and sentence passed under the N.D.P.S. Act. The power under S.389 of the Code is one such power conferred under Chapter XXIX of the Code. So, even though the provisions of the Act should prevail over the general enactments like Cr.P.C, the power of the High Court under S.389 is saved by S.36-B of the Act. 8. For the reasons stated above, the criminal miscellaneous petitions are allowed and the sentences against the petitioners are suspended and they are directed to be released on executing a bond for Rs.10,000/- (Rupees ten thousand only) with two solvent sureties each for the like amount to the satisfaction of the Court below.