Research › Browse › Judgment

Rajasthan High Court · body

1996 DIGILAW 495 (RAJ)

RAJAMAL v. UNION OF INDIA

1996-05-08

M.A.KHAN

body1996
Judgment ( 1 ) THE applicant appellant stands convicted of the offence u/s. 8/18 of the Narcotic Drugs and Psychotropic Substances Act 1985 (for short, the NDPS Act) and sentenced to 10 years rigorous imprisonment plus fine of Rs. 1,00,000/ -. He has prayed for suspension of his sentence and release on interim bail u/s. 389 read with S. 482, Cr. P. C. on the ground of the marriage of his son which is allegedly going to be solemenized on May 13, 1996. Earlier a similar prayer was made by him on the ground of the illness of his wife but was not accepted on 21-8-95 as the application was not pressed. ( 2 ) OPPOSING the prayer of the applicant for suspension of the sentence passed against him and his release on bail even for a short period the learned public prosecutor urged that the provisions contained in S. 32a of the NDPS Act creates it bar for this Court in exercising its powers in the matter of granting suspension of sentence and bail pending disposal of the appeal by the applicant. In this behalf the learned Public Prosecutor relied upon, the Division Bench decision of this Court in the case of Anwar v. State (1994) 2 WLC (Raj) 159 : (1994 Cri LJ NOC 414), wherein it was held that S. 32a of the NDPS Act creates a bar to suspension of sentence and release of a convict on bail or parole in such matters. Reliance in this behalf was also placed on the cases of Ishwar Singh Rajput v. State of Gujarat (1991) 2 Crimes 160 (Guj), Berlin Joseph v. State 1992 Crimes 353 (Ker) (FB) and Sita Singh v. State of Punjab 1995 Cri LJ 1733 (Punj and Har) wherein the same view as taken by this Court in Anwars case (supra) was taken. ( 3 ) MR. S. R. Bajwa, the learned Senior Counsel for the applicant, however, submitted that S. 32a of the NDPS Act is not a bar for the High Court exercising its powers in the matter of granting suspension of sentence and bail pending disposal of an appeal by a convict. The learned counsel added that the power of suspension u/s. 389, Cr. S. R. Bajwa, the learned Senior Counsel for the applicant, however, submitted that S. 32a of the NDPS Act is not a bar for the High Court exercising its powers in the matter of granting suspension of sentence and bail pending disposal of an appeal by a convict. The learned counsel added that the power of suspension u/s. 389, Cr. P. C. are preserved by S. 36b of the NDPS Act and Section 32a refers only to the powers of the Government to suspend, remit or commute a sentence which powers do not vest in courts. In support of this view Mr. Bajwa relied upon the case of Oliver Fernando P. T. v. Asstt. Collector of Madras, 1990 Drugs Cases 362. ( 4 ) REGARDING the D. B. decision of this Court in Anwars case (1994 Cri LJ NOC 414) (supra) Mr. Bajwa submitted that since that case was not decided with reference to the provisions contained in S. 36a of NDPS Act and other relevant provisions in the Code of Criminal Procedure, 1973 (for short the Code) and the Constitution of India, the same was not a good law and hence not binding on this Bench. At any rate, the contrary view expressed by the Madras High Court in Oliver Fernandos case (supra) and the Delhi High Court in the case of Amarjit Singh and Prem Prakash v. State (Delhi Administration) (1993) 2 Rec Cri R 466, contended Mr. Bajwa, justifies a reference on the question on and in the present case to a larger Bench of this Court. In this behalf Mr. Bajwa referred to the decisions of the Supreme Court in the cases of Tribhawan Puroshottam Das Thakker v. Rati Lal, AIR 1968 SC 372 and M/s. Ujagar Prints v. Union of India, AIR 1987 SC 874 . In the end the learned Counsel submitted that looking to the incoming marriage of the son of the applicant the Court should adopt a humanistic approach and release him on parole or furlough for a few days. ( 5 ) THE issue raised in this petition in fact stands squarely covered in favour of State by the Division Bench decision of this Court in the case of Anwar Ali (1994 Cri LJ NOC 414) (supra ). ( 5 ) THE issue raised in this petition in fact stands squarely covered in favour of State by the Division Bench decision of this Court in the case of Anwar Ali (1994 Cri LJ NOC 414) (supra ). Therefore, it is not necessary for this Bench to enter into any detailed and analytical study of the different provisions of various statutes in order to conclude that the view taken by the Division Bench was correct or not. Judicial discipline requires that a single Bench should not only regard but also must pay maximum respect to the decision of a Division or Larger Bench unless there are very cogent and strongly persuasive reasons for the single Bench to take a view different from that of the Division or larger Bench in which case the single Bench is bound to refer the case, along with its opinion, to the Chief Justice of the High Court for soliciting the opinion of a larger or Full Bench on the point of conflict. Fortunately that is not at all the position in the present case as this Bench is in respectful agreement with the views of the Division Bench deciding Anwar Alis case (supra ). ( 6 ) HOWEVER, since the learned Counsel for the petitioner vehemently urged that in the case of Anwar Ali release of the convict on parole was refused for the reason that his appeals upto the stage of the Apex Court had failed and the guilt of the accused in that case had been finally established, therefore, the merits in the arguments of the learned Counsel for the petition were not very seriously examined. I would like to deal with the arguments advanced briefly. ( 7 ) CONTROL over illicit drug traffic and drug abuse was been exercised in India by various Central Acts like the Opium Act 1878 and the Drugs Act, 1930. However, the passage of time brought to notice the development and increase in drug traffic and drug abuse at national and international levels due to certain deficiencies and short comings in the functioning of those statutes particularly in the field of adequacy of punishment to the offenders. However, the passage of time brought to notice the development and increase in drug traffic and drug abuse at national and international levels due to certain deficiencies and short comings in the functioning of those statutes particularly in the field of adequacy of punishment to the offenders. Of late new drugs of addiction known as psychotropic substances had started threatening human health and life and the cancerous growth in traffic of such substances at global level attracted the attention of the authorities concerned, in and outside of the country. It was in this background that the NDPS Act was brought on the Statute Book in the year 1985. Later, it was felt that more stringent provisions were necessary to check the menace of drug addiction and illicit traffic in such substances and imposition of greater curbs was considered necessary. Therefore, by Act 2 of 1989, the NDPS Act was amended suitably and new provisions like S. 32a, 36a and 36b were amended and Section 37 was drastically remoulded. These provisions, excepting Section 36a, which are necessary for our study may be reproduced herein in extenso :-"32a. 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 Section 27) shall be suspended or remitted or commuted.)""36b. 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. 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. Offence 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 (i) 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 clause (b) of sub-Sec. (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.)" ( 8 ) A combined study of the above-quoted and other provisions in the NDPS Act clearly exhibits that in the implementation of the scheme and to carry out the object and purpose of the NDPS Act the application of the relevant provisions relating to bail, suspension, remittance and commutation, as contained in the general law of procedure namely the Code of Criminal Procedure, 1973 has been notably excluded, S. 32a and 37 start with non-obstante clauses and mandate that the provisions of the Code 1973 relating to the matters covered by these provisions would have no application to such matters. Section 32a is couched in mandatory language and clearly lays down that no sentence awarded under the NDPS Act, save that awarded under S. 27, shall be suspended or remitted or commuted. It is well settled proposition of law that where the language of the statute is clear and unambiguous no effort to know the intention of the legislature should be made. At present we are not concerned with the executive power of the State to suspend, remit or commute the sentence of a convict. It is well settled proposition of law that where the language of the statute is clear and unambiguous no effort to know the intention of the legislature should be made. At present we are not concerned with the executive power of the State to suspend, remit or commute the sentence of a convict. In the facts and circumstances of the present case we are concerned with the powers of this Court to suspend the sentence of the petitioner for a short period. In other words we are concerned with the prayer of the petitioner to release him on parole or furlough. From the definition of these terms, as given in the Prisons Act and the Rules framed thereunder, it is clear that in the release of a prisoner either on parole or on furlough the sentence awarded to him is suspended. The distinction between these two terms is that wherein in the release of a prisoner on furlough his sentence is suspended for the time being and is also remitted, in release on parol the sentence is though suspended for the time being yet, it is not remitted. ( 9 ) BE that as it may. Section 389 (1) of the Code 1973 empowers an appellate Court to order that the execution of the sentence, appealed against, be suspended and, also, if he is in confinement, he be released on bail, or on his own bond. Sub-Section (2) of S. 389 confers the same powers on the High Court in the case of an appeal by a convicted person to it against the order or judgement from a court subordinate thereto. Thisprovision lies in Chapter XXIX of the Code which deals with appeals from judgements and orders made in criminal cases. Going by the plain and unambiguous language of S. 32a of the NDPS Act, the powers of this court to suspend the sentence of a convict for an offence, save u/s. 27 of NDPS Act, and his release on bail and/or bonds during the pendency of the appeal before it as per S. 389 of the Code, stands controlled by the legislature. The embargo put on such powers of the Court is in consonance and conformity with the scheme of the NDPS Act and advances and promotes its object. ( 10 ) AT this stage it was urged by Mr. The embargo put on such powers of the Court is in consonance and conformity with the scheme of the NDPS Act and advances and promotes its object. ( 10 ) AT this stage it was urged by Mr. Bajwa that Section 36b of the NDPS Act permits the High Court to exercise all the powers conferred upon it by Chapter XXIX and XXX of the Code 1973 and since S. 389 falls under Chapter XXIX, the High Court has power to suspend the sentence of a convict for an offence against the NDPS Act. I am unable to accept this contention. ( 11 ) IT requires to be noted that S. 36b falls in the series of the provisions contained in Ss. 36, 36a, 36c and S. 37 of NDP Act. In view of the gravity of the offences under the NDPS Act and the quantum of the punishment which the commission of such offences attracts and with a view to expeditiously try such offences the legislature thought it proper to make special forum for the trial of such offences and also to modify the rules of procedure in their trials. By S. 36 Special Courts were directed to be constituted and by S. 36a such special Courts were empowered to try the offences under the NDPS Act. By Section 36b provision for appeal and revisions from the judgement and orders of the special Courts was made. By Section 36c the provisions of the Code, including the provisions as to bail and bonds were made applicable to the proceedings before the special Court. It may be noted that S. 36c starts with a saving clause which reads as "save as otherwise provided in this Act" which clause may include Ss. 32a, 36b and S. 37 of the NDPS Act as well. It means that in the application of the provisions of the Code 1973 S. 32a, Section 36b and S. 37 shall have their own play and their working shall remain unaffected. Section 37 makes all the offences under the NDPS Act cognizable and non-bailable. This Section again starts with a non-obstante clause and significantly restricts the applicability of the provisions of the Code 1973 particularly in the matters of granting bail. Section 37 makes all the offences under the NDPS Act cognizable and non-bailable. This Section again starts with a non-obstante clause and significantly restricts the applicability of the provisions of the Code 1973 particularly in the matters of granting bail. Sub-Section (2) clarifies that the limitations put by sub-Sec. (1) (b) of S. 37 are in addition to the limitations under the Code or any other law for the time being in force. On reading the various provisions of the NDPS Act it becomes abundantly clear that in its working and application S. 32a is quite independent of other provisions in the NDPS Act for the obvious reason that it specifically deals with post-conviction period including the period during pendency of appeal against conviction and creates a clear and specific bar or prohibition to the suspension of the sentence of a convict, which may even be for a short period, on parol or furlough. In that view of the matter I respectfully fall in line with the views expressed by their Lordships of the Kerala, Gujrat and Punjab and Haryana High Courts in the cases cited supra. With utmost respects to their Lordships of the Madras and Delhi High Courts, who have taken a contrary view on the point on hand. I find myself in respectful disagreement with them. It may be mentioned that the view expressed by the Madras and Delhi High Courts was not endorsed by the Punjab and Haryana High Courts in the case of Sita Singh (1995 Cri LJ 1733) (supra ). ( 12 ) THE argument that in view of the conflict in the opinions between the Madras and Delhi High Courts on the one hand and the Gujarat, Kerala, Gujrat and this court on the other the point should be referred to a larger Bench of this court does not appeal to me at all for the reasons stated above. ( 13 ) FOR the arguments of Mr. Bajwa that in view of the incoming marriage of the son of the petitioner a humanistic approach is required to be adopted, suffice it should to say that misplaced sympathy of Courts not only causes bruises on the face of justice but also compels the law-makers to come out with more stringent laws, for the law breakers thereby robbing the Courts of their powers of being lenient even in deserving cases. Tilt of balance of law towards absolute liability is not a happy situation. That situation should be avoided in the larger interest of the society and our system of dispensation of criminal justice. ( 14 ) SO sum up, this petition is found to be devoid of any force and is accordingly dismissed. Petition dismissed. .