Phasalu v. State of Kerala — 1991 DIGILAW 386 (KER)

Judgment :- These two appeals and the Cr1.M.P. came up before a Division Bench on reference doubting the correctness of the decision in Appachan v. Excise Circle Inspector (1990 (2) KLT610) regarding the interpretation of S.37 of the Narcotic Drugs and Psychotropic Substances Act. In the Crl. M. Ps. both the learned judges took the view that though S.37 is applicable, to the High Court also in granting bail under S.439, that provision is inapplicable when the accused has been convicted and he files appeal seeking suspension of sentence. But Pareed Pillay, J. said that S.32A stands in the way of suspending sentence and granting bail. On that ground the petitions were dismissed. But Balakrishnan, J. said that S.32A is not applicable to the High Court and it affects only the powers of the Government under Ss.432 and 433 of the Code of Criminal Procedure. Petitions were allowed. That is how these petitions came up before me on reference to express my opinion. The opinion to be given is on the question whether the two applications are to be allowed or not 2. There cannot be any doubt that S.32A is not meant to curtail the powers of the High Court. S.32A contains a non-obstante clause that notwithstanding anything contained in the Code of Criminal Procedure or any other law no sentence awarded under the Act other than under S.27 shall be suspended or remitted or commuted. The power of the High Court for suspension is only under S.389 pending appeal and that may apply to revisions also. Remission or commutation, if any, are applicable so far as the High Court is concerned only in its appellate jurisdiction which takes the revisional jurisdiction also. S.36A saves the powers of the High Court under S.439 of the Code of Criminal Procedure but we are not very much concerned with that provision because the saving is only with reference to S.36A alone. But there is S.36B which says that so far as may be applicable the High Court may exercise all powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure. Chapter XXIX deals with appeals and Chapter XXX deals with reference and revision. Ss.386 and 389 are in Chapter XXIX. But there is S.36B which says that so far as may be applicable the High Court may exercise all powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure. Chapter XXIX deals with appeals and Chapter XXX deals with reference and revision. Ss.386 and 389 are in Chapter XXIX. When all the powers of the High Court under these chapters are saved, it is not possible to think that S.32A is intended in any way to affect the powers of the High Court. 3. S.432 and 433 of the Code of Criminal Procedure in Chapter XXXIII deal with the powers of suspension, remission and commutation of sentences by the Government. Those provisions alone were intended to be affected by S.32A. That is clear from the wording of S.32A which says that no sentence awarded under the Act other than under S.27 shall be suspended or remitted or commuted. If that provision is interpreted as taking away the powers ofthe High Court what will be affected is the power of judicial review of the sentence in appeal or revision because so far as the High Court is concerned interference with the sentence is possible only judicially. It will be absurd to think that the legislature by S.32A wanted to take away the judicial powers and discretion of the High Court to interfere with the sentence. If such an interpretation is accepted, there will be no meaning in an appeal to High Court which can interfere with the sentence only judicially. So also S.36B saving the powers of the High Court in relation to Chapter XXIX and XXX namely appeals, reference and revision will become meaningless. It is therefore clear that what the legislature meant by S.32A was that the Government should not be allowed to exercise its powers of suspension, commutation and revision under S.27 which is comparatively minor. What the legislature wanted in view of the seriousness of the offence is that in public interest Government should not exercise these rights. Judicial review in not in any way affected by S.32A. 4. Both the learned judges agreed on the question that S.37 of the Act is applicable to the High Court also so far as granting bail under S.439 of the Code of Criminal Procedure is concerned. Judicial review in not in any way affected by S.32A. 4. Both the learned judges agreed on the question that S.37 of the Act is applicable to the High Court also so far as granting bail under S.439 of the Code of Criminal Procedure is concerned. The only reservation is that while considering suspension of sentence and grant of bail under S.389 in appeal agar QSt conviction and sentence, S.37 has to be ignored. This view proceeds on the assumption that grant of bail under Ss.439 and 389 stand on entirely different footings. S.389(1) consists of two parts. First is suspension of sentence. In all cases suspension of sentence need not be followed by grant of bail. Grant of bail becomes necessary only in a case where there is a sentence of imprisonment on the basis of which the accused is in confinement. Other cases involve onlythe first part namely suspension of sentence. That may be the position also in cases where the accused though sentenced to imprisonment is not in confinement. So also there may be cases where the sentence is only fine or a disqualification or something else which may not necessitate release on bail. When bail is to be granted under S.389 it cannot be treated on a different footing than under S.439 except perhaps in the matter of imposing conditions or exercising discretion on the ground that grant of bail may interfere with investigation. That distinction itself may not be there when once investigation is over and the trial started after charge is laid. Bail contemplated under S.389 cannot be anything different from the one under S.439. 5. It is true that in S.37 of the Act and in S.439 of the Code of Criminal Procedure, the words used are "any person accused of an offence". Under S.37 such a person, if the offence is punishable with imprisonment of five years or more under the Act, cannot be released on bail without giving the Public Prosecutor an opportunity to oppose, and if he opposes without being satisfied that there are reasonable grounds to believe that he is not guilty and that he is not likely to commit any offence while on bail. We must understand the purpose behind this provision which I need not emphasise here because it is evident. We must understand the purpose behind this provision which I need not emphasise here because it is evident. A person who is accused of an offence will not cease to be so simply because he is tried, convicted and sentenced. Appeal is continuation of the proceeding and the accused continues to be so till the proceeding comes to a final conclusion. A person who was found guilty, convicted and sentenced by a competent court cannot, in the matter of bail, be treated on a better position than one who is only under the stage of investigation, inquiry or trial. It may not be correct to say that S.37 inhibits grant of bail only during trial and inhibition is over as soon as trial and conviction are over. Being a special enactment dealing with a special situation the provision must have overriding effect on the provisions of the Code of Criminal Procedure especially in view of the non-obstante clause. S.37 is not withstanding anything contained in the Code. It is not necessary that the wording should be such as to specifically include a convicted person also. That is implied. Provisions as to bails and bonds are only those in Chapter XXXIII. Other provisions or reference, if any, in the Code could only indicate instances in which bail or bond could be ordered. But they are also subject to Chapter XXXIII though stringency of conditions maybe different as in S.167(2). That provision is also subject to S.37 of the Narcotic Drugs and Psychotropic Substances Act. 6. The Narcotic Drugs and Psychotropic Substances Act is a special enactment and it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The Supreme Court considered all the aspects of the Act in relation to the provisions of the Code of Criminal Procedure in the decision in Narcotic Control Bureau v. Kishan Lai (1991 (1) KLT547) and said that the other provisions of the Code of Criminal Procedure should be subject to such special enactment and in interpreting the scope of the Statute the dominant purpose underlying the Statute has to be borne in mind. In unambiguous terms the Supreme Court said that the High Court's powers to grant bail under S.439 are also subject to the limitations contained in S.37 and the non-obstante clause is clearly intended to restrict the powers to grant bail. In case of inconsistency between S.439 of the Code of Criminal Procedure and S.37 of the Narcotic Drugs and Psychotropic Substances Act the latter should prevail. 7. But it cannot be said that the power of the High Court to grant bail is taken away. If there is the satisfaction, in spite of conviction and sentence, that there are reasonable grounds to believe that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail, nothing prevents bail being granted at the trial stage or appellate stage. But we will have to respect the Statutory restrictions. Rule 184 of the Defence and Internal Security of India Rules was also considered by the Supreme Court. I do not think that there is any scope for giving a narrow interpretation to S.37 of the Narcotic Drugs and Psychotropic Substances Act in order to limit its scope to the stages of investigation, inquiry or trial and not to extend it to the appellate stage. In this case, I do not think that at this stage there is any justification for a satisfaction that the accused is not guilty or that he is not likely to commit any offence while on bail. I, therefore, give my opinion that the petitions are liable to be dismissed.