S. D. JHA, J. ( 1 ) CONVICT-APPELLANT Giriraj (hereinafter called the accused) by judgment dated 13/9/1991 in S. T. No. 230 of 1990 delivered by the first Additional Sessions Judge Neemuch District Mandsaur has been convicted under section 8/18 of the Narcotics Drugs and Physchotrophic Substances Act 1985 (hereinafter called the Act) and sentenced to under go rigorous imprisonment for ten years and to pay a fine of rupees one lac, in default of payment of fine, further rigorous imprisonment for two years. By this application under section 389 (1) of the Code of Criminal Procedure 1973 (hereinafter called the Code) read along with Section 36-B of the Act prays for suspension of execution of sentence and release on bail. ( 2 ) AT the hearing of the application Shri Brijesh Pandya learned counsel for the accused, relying on order dated 25/3/1991 in Rameshwar v. The State1 passed by a Single Judge of this Court (Hon. Shri M. W. Deo J.) submitted that inspite of newly introduced section 32-A in the Act, it was competent for this Court to order suspension of execution of sentence even in case of conviction for an offence other than under section 27 of the Act. For the same purpose he also relied on a decision of Madras High Court in Kantilal Jam and others v. Assistant Collector (CIU) Madurai and others and opinion of third Judge in Phasalu v. State of Kerala on difference between the Judges of Divisional Court in the same case of Phasalu reported in 1992 (1) EFR 224. This decision had taken the same view as that of Madras High Court already referred to above. ( 3 ) SHRI Girish Desai the then Panel Lawyer representing the State however strongly opposing the contentions of Shri Pandya submitted that unlike section 432 of the Code Section 32-A of the Act had words. of general import and there is nothing therein to show that it is to apply to appropriate Government, as is specifically mentioned in section 432 of the Code. of general import and there is nothing therein to show that it is to apply to appropriate Government, as is specifically mentioned in section 432 of the Code. In absence of reference to appropriate Government in this section, it would apply also to this Court for conviction of offences other than section-27 of the Act, while considering the application for suspension of execution of sentence under section 389 (1) of the Code, In support of his contention Shri Desai referred to a decision of Supreme Court in narcotics Control Bureau v. Kishanlal and others4 which holds that High Court's power under section 439 of the Code to bail is subject to limitations under section 37 of the Act and the limitation is applicable to the High Court. He also referred to Ishwarsingh M, Rajput v. State of Guja rat, ( 4 ) THE newly inserted section 32-A in the Act reads as under: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) of 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. ( 5 ) CONVICTION of the accused is for offence under section 8/18 of the Act, an offence other than section 27 of the Act. In the instant case, learned counsel also agreed that section 33 of the Act is not attracted. The question for consideration is whether in view of newly introduced section 32-A for conviction of offence other than section 27 of the Act, this Court can order suspension of execution of sentence and release of the accused on bail while, exercising power under section 389. ( 6 ) ORDER dated 25/3/1991 to the extent it relates to interpretation of the scope and content of Sections 32-A and 36-B or the Act cannot be said to be of interim or interlocutory nature so as not to operate as precedent in other appeals involving suspension of execution of sentence for offences other than for conviction under Section 27 of the Act which is expressly saved by Section 32-A. ( 7 ) I find it difficult to subscribe to the interpretation made by the learned Single Judge for the following reasons. The order dated 25. 3. The order dated 25. 3. 1991 (supra) observes that phrase so far as may be used in Section 36- B of the Act reserving the power of the High Court of appeal and revision under Chapter XXIX and XXX of the Code which would include the power to suspend execution of sentence is not affected or controlled by Section 32-A of the Act. For the purpose be observed that Section 32-A uses the language in Chapter XXXII execution, suspension remission and commutation of sentence applicable in the case of the State Government. It is to be noted that the title of Chapter reading execution, suspension, remission and commutation of Sentence would not control the meaning of sections in Chapter. The relevant provisions are sections 432, 433, 434 and 435. These sections refer to appropriate Government, State Government and, Central Government. Sub-section 7 of section 432 has also set out the meaning of Appropriate Government. Unlike these, section 32-A does not make any reference to any Government or appropriate Government. Absence of the words State Government, Central Government or Appropriate Government, in Section 32-A would make it applicable to this court, and except for conviction for offence under section 27 no suspension of sentence for conviction under other sections could be ordered. ( 8 ) SECTION 37 of the Act as amended in 1989 has considerably narrowed the power under section 439 of the Code of this Court to grant bail. The Supreme Court in Narcotics Control Bureaus case (supra) in para 6 of the judgment, inter alia, observed: 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 the N. D. P. S. 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 section 439 Cr. P. C. are not subject to the limitation mentioned under Section 37 of the 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. P. C. are not subject to the limitation mentioned under Section 37 of the 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 Cr. P. C. and Section 37 of the N. D. P. S. Act, Section 37 prevails. T ( 9 ) AGAIN in para 6 it was observed that: 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 there in 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 Section 37 of the N. D. P. S. Act. T ( 10 ) SECTION 37 of the Act is applicable before the accused is convicted. Keeping in view the underlying object of the provision as noticed by the Supreme Court, it is not conceivable that after the accused has been convicted of an offence other than under Section 27 which is expressly saved by Section 32-A of the Act, this Court should have power to suspend execution of sentence awarded to the convict/appellant. It is also significant that Section 32-A of the Act also beginst with non obstante clause and it would have to be given the same meaning as was given to it by the Supreme Court in Narcotics Control Bureaus case (supra ). ( 11 ) THIS section came up for interpretation before a Division Bench of Gujarat High Court in Ishwar Singhs case (supra ). The question for decision was whether a person convicted under N. D. P. S. Act could be released on either parole or furlough after addition of Section 32-A in the Act. Para 7 refers to the statement of objects and reasons for introducing the amendment to the Act. The proposal in sub-para 2 (ii) is to provide that no sentence awarded under the Act shall be suspended or remitted or commuted. Para 7 refers to the statement of objects and reasons for introducing the amendment to the Act. The proposal in sub-para 2 (ii) is to provide that no sentence awarded under the Act shall be suspended or remitted or commuted. In the end of the para, the Gujarat High Court after referring to the statement of objects and reasons observed that:it is abundantly clear that section 32-A and other sections arc added inter alia to provide that the drug offenders may not. be released on bail, punishment to the offenders is deterrent and to make provision that no sentence awarded under the Act shall be suspended, remitted or commuted. The Court goes on to say that this object of parliament will be frustrated if the prisoners convicted under the Narcotics Act are released on parole or furlough. ( 12 ) FULL Bench judgment of Kerala High Court in Berlin Joseph v. State6, which is available at the time this order is being dictated would support my view. In the said decision it was inter alia held by thefull Bench in para 13 which reads as under:for the aforesaid reasons, we agree with the view adopted by Pareed Pillay J in Phasalu v. State of Kerala (supra) 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 a convicted person either during the pendency of his appeal or revision, unless it relates to the offence under section 27. ( 13 ) AS I propose to make a reference to the Division Bench it is not necessary to deal with and discus decisions of Madras High Court (supra) and Kerala High Court in Phasalus case. ( 14 ) IN view of the difference between Hon. M. W. Deo J. and myself, the following question requires reference to the Division Bench for consideration: whether in view of newly introduced section 32-A in the N. D. P. S. Act 1985 for conviction of offence other than section 27 of the Act this Court can order suspension of execution of sentence and release the accused on bail while exercising power under section 389 (1) of the Code of Criminal Procedure 1973? The matter be placed before My Lord Hon. the Chief Justice for constituting a Division Bench for resolving this difference. The matter be placed before My Lord Hon. the Chief Justice for constituting a Division Bench for resolving this difference. Matter referred to Division Bench. .