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1992 DIGILAW 76 (KER)

Berlin Joseph v. State

1992-02-24

BALANARAYANA MARAR, SHAMSUDDIN, THOMAS

body1992
Judgment :- Thomas, J. There is clear cleavage of opinions between two learned judges of this Court regarding interpretation of certain provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS act). The main questions on which such different interpretations were made by the learned judges are these: (1) Whether the High Court can suspend the sentence passed on an accused convicted of an offence under NDPS Act during pendency of his appeal before the High Court? (2) Whether the conditions in S.37 of the NDPS Act for granting bail have overriding effect on the proviso to S.167(2) of the Code of Criminal Procedure (for short 'the Code')? 2. The questions came before Full Bench after some tides and drifts. We shall state briefly the background of how it reached the Full Bench. In Appachan v. Excise Circle Inspector (1990 (2) KLT 610), balakrishnan, J. held that S.37 of the NDPS Act does not override S.167 of the Code. But correctness of the said decision has been doubted by Ramakrishnan.j. in another case and referred it to a Division Bench. It was in the said case that the two learned judges took conflicting views. The decision of the division bench is reported in Phasalu v. State of Kerala (1991 (2) KLT 787). Pareed Pillay, J. took the view that High Court has no power to suspend sentence during pendency of the appeal, whereas Balakrishnan, J. adopted the opposite view that High Court has the power to suspend such sentence on the premise that power of the High Court under S.389 of the Code is saved by the operation of S.36-B of the NDPS Act. As the two learned judges adopted two conflicting views on the legal position, those cases were laid before another single Judge. Padmanabhan, J. (learned single judge) agreed with Balakrishnan, J. that S.32-A of the NDPS Act is not meant to curtail the powers of the High Court. He proceeded further and held that such power of the High Court is subject to S.37 of the NDPS Act. 3. In Crl.M.P.No.1742/91, petitioner is a convicted accused who filed an appeal against his conviction and sentence before this Court. He prays for suspension of the execution of sentence passed against him. He proceeded further and held that such power of the High Court is subject to S.37 of the NDPS Act. 3. In Crl.M.P.No.1742/91, petitioner is a convicted accused who filed an appeal against his conviction and sentence before this Court. He prays for suspension of the execution of sentence passed against him. In Crl.M.C.No.1155/91, petitioner challenges the order of the Sessions Judge dismissing his application for bail on the ground that proviso to S.167(2) of the Code is not applicable. Thulasidas, J. doubted the correctness of the decisions in Phasalu v. State of Kerala (1991 (2) KLT 787) including the decision of Padmanabhan, J. and referred these cases to a larger bench. When these cases came before a division bench, they have been referred to a Full Bench to resolve the conflict. That is how these matters are before the Full Bench now. 4. The NDPS Act was originally enacted, in 1935 as there was need to make a comprehensive legislation on narcotic drugs and psychotropic substances and to make provisions for implementations of inter-national convention relating to such drugs and substances. Later, as Parliament felt that more stringent provisions are necessary to check the menace of drug addiction and illicit traffic in such substances, imposition of greater curbs was found necessary. Hence Parliament passed Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 which received the assent of the President on 6-1-1989 and became Act 2 of 1989, as per which certain new provisions were added to the parent Act. Ss.32-A, 36-A and 36-B are some of the new provisions while S.37 was drastically re-moulded through the amendment. In deciding the questions referred to the Full Bench, we find it appropriate to extract those provisions here (except S.36-A which can be referred to ai a later stage). "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. "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. 36-B. Appeal and revision.-the High Court may exercise so far as may be applicable all the powers conferred by Chapters XXIX and XXX 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 Session trying cases within the-local limits of the jurisdiction of the High Court. 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 opposes 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 Cl.(b) of sub-section (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." 5. The contention based on S.36-B is that since High Court has "all the powers" conferred by Chapter 29 and 30 of the Code, High Court has also power to suspend the sentence passed on a convicted person by exercising powers under S.389 of the Code. (S.389 falls within Chapter 29 of the Code). S.389 of the Code provides that pending appeal by a convicted person, the appellate court may order that execution of the sentence appealed against be suspended. (S.389 falls within Chapter 29 of the Code). S.389 of the Code provides that pending appeal by a convicted person, the appellate court may order that execution of the sentence appealed against be suspended. According to the learned counsel, S.32-A of the NDPS Act can have application, in the aforesaid background, only to "suspension, remission and commutation of sentences" referred to in Ss.432 and 433 of the Code which fall within Chap.32 of the Code. Counsel invited our attention to the main title given to Chapter 32 of the Code as "Execution, suspension, remission and commutation of sentences". The sub-title given to the 'E' division in the Chapter is "suspension, commutation and remission of sentences". As powers of the High Court while dealing with an appeal (provided in Chapter 29 of the Code) are well preserved, the legislative intention is not to whittle down the High Court's power to suspend the sentence during pendency of appeal, according to the learned counsel. We will examine the tenability of this contention now. 6. Art.72 of the Constitution of India confers power on the President of India "to suspend, remit or commute sentence" in all cases where punishment or sentence is for an offence against any law relating to a matter to which executive power of the Union extends. Art.161 containssimilar power which Governor of a State can exercise in relation to a person convicted of any offence against law relating to a matter which the executive power of the State extends. A Constitution Bench of the Supreme Court has held in Maru Ram v. Union of India (AIR 1980 SC 2147) that power under Arts.72 and 161 of the Constitution cannot be exercised by the President or Governor on their own but only on the advice of the appropriate Government. The said ratio has been followed by another Constitution Bench of the Supreme Court in Kehar Singh v. Union of India (1989 SC 653). Thus, the position relating to Arts.72 and 161 of the Constitution, as interpreted by the Supreme Court, is that the appropriate executive Government can advice the Head of the State to exercise powers thereunder and such advice is binding on him. Thus, the position relating to Arts.72 and 161 of the Constitution, as interpreted by the Supreme Court, is that the appropriate executive Government can advice the Head of the State to exercise powers thereunder and such advice is binding on him. If the object ofS.32-AoftheNDPS Act is to take away the power of the Government to suspend, remit or commute the sentence, the legislative exercise in enacting the said provision is practically of futility because even without Ss.432 and 433 of the Code, the appropriate government can suspend, remit or commute sentences in exercise of the constitutional functions. For this reason, firstly, we are not impressed by the contention that the sole object of incorporating a provision like S.32-A in the NDPS Act was to impose curb on the executive power to suspend, remit or commute the sentence passed on a particular accused. 7. Next is, if legislative intent in enacting S.32-A of the NDPS Act is only to curb the governmental powers under Ss.432 and 433 of the Code, clear and necessary words in S.32-A would have been conveniently employed in the provision. Instead of saying "notwithstanding anything contained in the Code", S.32-A could have been worded as "notwithstanding anything contained in Chapter 32 of the Code". That apart, the words "or any other law for the time being in force" in S.32-A would further show that the sole aim of the provision is not to fetter exclusively the power envisaged in Ss.432 and 433 of the Code. 8. Yet, a more catching indication gatherable from the Amendment Act is that S.37 is specifically made applicable only to a person "accused of an offence" and not to a person convicted of an offence. The reasoning of Padmanabhan, J. on this score, is that the words "any person accused of an offence" would include a convicted person also "as 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". We do not think that legislature would have used the words "person accused of an offence" to stretch the tentacles to a convicted person also. An analysis of the legislative exercise would show that there was some effort to explicitly exclude a convicted person from its ambit. 9. We do not think that legislature would have used the words "person accused of an offence" to stretch the tentacles to a convicted person also. An analysis of the legislative exercise would show that there was some effort to explicitly exclude a convicted person from its ambit. 9. In this context it is appropriate to refer to R.184 of the Defence of India Rules, 1971 which says that "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 " (similar conditions provided). Reference can also be made to S.57(a)(4) of the Kerala Abkari Act. It reads thus: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), no person accused or convicted of an offence under sub-sec. (I) or sub-sec.(3) shall, if in custody, be released on bail or on his own bond unless-(similar conditions provided)." Thus in similar provisions in other statutes "convicted person" is also specifically included in addition to "accused person". His exclusion from S.37 of the NDPS Act, in that background, is not without any reason or rationale. It is because the case of a convicted person is covered elsewhere (in S.32-A) that the legislature wanted to exclude him from the scope of S.37. It cannot be assumed that Parliament wanted an accused person to be enmeshed under more stringent rigours than convicted persons. 10. In support of the argument that S.32-A is not intended to take away the High Court's power to suspend sentence, main thrust was laid on S.36-B. The said section, no doubt, S.36B empowers the High Court to exercise the powers envisaged in Chapter 29 of the Code. But does it empower the High Court to exercise all the powers envisaged in the said Chapter? It must be borne in mind that the section has advisedly used the rider words "so far as it is applicable" in order to indicate that the section is not intended to invoke all the powers envisaged in the Chapter hook, line and sinker. It must be borne in mind that the section has advisedly used the rider words "so far as it is applicable" in order to indicate that the section is not intended to invoke all the powers envisaged in the Chapter hook, line and sinker. If that part of S.189 of the Code which deals with discretion of the High Court to suspend the sentence is not applicable, then S.36-A of the NDPS Act is not a carte blanche to exercise all powers conferred on the appellate court by virtue of Chapter 29 of the Code. 11. To winch the legislative intent, it is permissible for courts to take into account "Objects and Reasons" presented-while introducing the Bill before the legislature. Such a course was considered not desirable a decade ago, but "the recent trend in juristic thought in western countries" has led our courts also to take into account "everything which is logically relevant" while interpreting the provisions of a statute. (Vide K.P. Varghese v. I.T. Officer, Ernakulam-AIR 1981 SC 1922 and Hindustan Paper Corpn. Ltd. v. Government of Kerala -1985 KLT 915). Statement of Objects and Reasons for introducing Bill No.125/88 in the LokSabha (which later became Act 2 of 1989) was published in the Gazette of India (6th December, 1988). One of the statements is thus: "Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of NDPS Act, 1985 the need to amend the law to further strengthen it, has been felt". The aforesaid statement, when read along with the scheme of the amended provisions helps to discern that S.32-A is intended to provide an embargo against suspension, remission and commutation of sentence of a convicted person, whether it is during the pendency of appeal or otherwise. 12. Sri. M.N. Sukumaran Nayar, learned counsel tried to show that the aforesaid interpretation would lead to hazarduous consequences. He cited one possibility like this: Even under S.37 bail can be granted in cases where the offence is punishable for a term of less than five years, but if he is convicted of that offence, his sentence (which may be a short term imprisonment) cannot be suspended, when his appeal is pending. He cited one possibility like this: Even under S.37 bail can be granted in cases where the offence is punishable for a term of less than five years, but if he is convicted of that offence, his sentence (which may be a short term imprisonment) cannot be suspended, when his appeal is pending. In this context, we have to make a special note of a parenthetical clause included in S.32-A which reads thus: "(other than S.27)". The said words in parenthesis make it clear that a sentence passed for an offence under S.27 can be suspended in exercise of powers under Chapter 29 of the Code. S.27 deals with punishments for relatively minor offences under the NDPS Act. In fact, a reading of the aforesaid parenthetical clause fortifies the interpretation that S.32-A in its generality is intended to operate against suspension of sentence at any stage either by the High Court or by any other authority. 13. For the aforesaid reasons, we agree with the view adopted by Pareed Pillay, J. in Phasalu v. State of Kerala (1991(2) KLT 787) that application of S.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 S.27. 14. We will now proceed to consider the second point whether S.37 of the NDPS Act overrides the command contained in the proviso to S.167(2) of the Code that on the expiry of 90 days or 60 days, as the case maybe, the accused person shall be released on bail if he is prepared to and does furnish bail. 15. Sub-sec. (1) of S.167 of the Code enjoins a duty on the police officer arresting an accused to forward him to the nearest magistrate within 24 hour- Sub-sec. (2) casts obligations on such magistrate to decide, inter alia, whether the accused so forwarded should be kept in further custody and if so, in which place. Such custody shall not exceed 15 days in the whole. Then comes the proviso which consists of three limbs. In the first limb, the magistrate can authorise detention of the accused beyond 15 days (not in police custody). Such custody shall not exceed 15 days in the whole. Then comes the proviso which consists of three limbs. In the first limb, the magistrate can authorise detention of the accused beyond 15 days (not in police custody). Second limb consists of a prohibition that no magistrate shall authorise detention of the accused person in custody for a total period exceeding 90 days or 60 days depending on gravity of the offence. The third limb contains the legislative command that on the expiry of 60/90 days (as the case may be) an accused "shall be released on bail" if he is prepared to and does furnish bail. If the conditions in S.37 of the NDPS Act have to be complied with before releasing an accused on bail even after the expiry of 60/90 days the legislative directive contained in S.167 loses its commanding force. Either S.37 of the NDPS Act has to yield to the proviso in S.167(2) of the Code or S.37 must override the other. 16. What would be the consequence, if S.37 of NDPS Act overrides S.167 of the Code? We pointed out that under S.167 of the Code a Magistrate has no power to authorise detention of any person beyond a period of 60/90 days. If such an accused person can be released on bail, at the said stage, only on compliance With the stringent conditions contained in S.37, practically no accused can be eleased on bail even after the said period of 60/90 days. Unless he is set free, he will continue to remain in detention. But how long? Perhaps the police may take many months (if not years) to finalise the report. The accused will have to languish in custody without a trial like a "Pappilone" for considerably long period. 17. In Rajnikant v. Intelligence Officer Narcotic Control Bureau (AIR 1990 SC 71), Jagannatha Shetty, J. sitting as vacation judge, has held that the right to bail under S.167(2) proviso (a) to the Code is absolute and is a legislative command and not the discretion of the court. Although the accused in the said case was involved in offences under Ss.21,23 and 29 of the NDPS Act, the said decision was rendered when NDPS Act remained before its amendment by Act 2 of 1989. So, that decision is of no help in deciding the question now posed. Although the accused in the said case was involved in offences under Ss.21,23 and 29 of the NDPS Act, the said decision was rendered when NDPS Act remained before its amendment by Act 2 of 1989. So, that decision is of no help in deciding the question now posed. Nor does the Supreme Court decision in Narcotics Control Bureau v. Krishnan Lai (AIR 1991 SC 558 -1991 (1) KLT 547) help us in resolving the present question because in that decision the question considered was whether S.37 would control S.439 of the Code. That is a different question altogether. 18. For deciding this aspect, we have necessarily to go into the contours of S.36-A of the NDPS Act. It contains three sub-sections. In the first sub-section, after providing that offences under NDPS Act shall be tried by special court constituted by the Government, it enables a magistrate to order detention of the accused forwarded to him under S.167(2) of the Code. Here the same powers as contained in S.167(2) of the Code are repeated with the only alteration that the court to which the accused is to be forwarded next is the Special Court constituted under the NDPS Act. Clause (c) of the said sub-section is important in this context. It reads thus: "(c) the Special Court may exercise„ in relation to the person forwarded to it under Cl.(b), the same power which a Magistrate having jurisdiction to try a case may exercise under S.167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section." The said clause is clear indication that the directive contained in S.167(2) proviso is intended to be issued at the appropriate stage even if offences under NDPS Act are involved. If S.37 of the NDPS Act is allowed to control or restrict the application to proviso to S.167(2) of the Code, the latter provision would become ineffective and a dead letter. 19. A Division Bench of the Calcutta High Court has considered the same question in Md. Abdul v. State of West Bengal (1991 (II) Crimes 741). If S.37 of the NDPS Act is allowed to control or restrict the application to proviso to S.167(2) of the Code, the latter provision would become ineffective and a dead letter. 19. A Division Bench of the Calcutta High Court has considered the same question in Md. Abdul v. State of West Bengal (1991 (II) Crimes 741). Their Lordships held that "since proviso to S.167(2) lays down that no person can be remanded to custody under authority of that section for a period beyond 90/60 days the proviso to sub-section (2) of S.167 automatically attracted and the learned special judge has no option but to release the person on bail". The Division Bench has considered how far S.37 would come into play in such situation and found that S.167 of the Code will stand unfettered. 20. The result of the discussion is that S.167(2) would operate even for offences under the NDPS Act and then S.37 of the NDPS Act has no application. In other words, S.37 of the NDPS Act does not override S.167(2) of the Code. Hence the legal position set out by Balakrishnan, J. in Appachan v. Excise Circle Inspector (1990 (2) KLT 610) is correct. Crl.M.P.No.1742/91 is accordingly dismissed. The impugned order in Crl.M.C.1155/91 is set aside and we direct the lower court to dispose of the application afresh.