ORDER I.A. Ansari, J. 1. Whether Section 32-A completely bars jurisdiction of the appellate Courts to suspend, by invoking the provisions of Section 389(2), Cr.P.C., the sentence passed against a person following his conviction for an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'the NDPS Act')? If the embargo, placed by Section 32-A, on the powers of the appellate Courts to suspend, by invoking its powers under Section 389(1), Cr.P.C., is not absolute, what are the parameters of such power of suspension in respect of a person, who stands convicted and sentenced for having been found to have committed an offence under the NDPS Act? These are the two major questions, which this Misc. Case has raised. 2. On being tried, along with two other persons, on a charge, framed under Sections 20(b)(ii)(B) of the NDPS Act, for having been allegedly found, on 14-6-2000, in possession of ganja (Cannabis) without any authority of law, the accused-petitioner and the said two others stand convicted, under the said panel provisions of law, by judgment and order, dated 17-10-2007, passed in Sessions (Special) Case No. 8(K)/2001. Following their conviction, as aforesaid, the three convicts, including the present accused-petitioner, have been sentenced to suffer rigorous imprisonment for three years and pay fine of Rs. 5,000/- each and, in default of payment of fine, to suffer rigorous imprisonment for a further period of one year. Aggrieved by the conviction and sentence, passed against him, the present accused-petitioner has preferred an appeal, which stands registered as Criminal Appeal No. 232/2007. The appeal already stands admitted for hearing. 3. By making this Miscellaneous Application under Section 389(1), Cr.P.C., the accused-petitioner has sought for suspension of sentence passed against him and to allow him to go on bail pending disposal of the appeal. I have heard Mr. K. Bhattacharjee, learned Counsel for the accused-petitioner, and Mr. K. Munir, learned Additional Public Prosecutor, Assam. 4. Appearing on behalf of the appellant Mr. Bhattacharjee has submitted that notwithstanding the bar imposed by Section 32-A of the NDPS Act on the powers of the appellate Court to suspend, by virtue of the provisions of Section 389(1), Cr.P.C., the sentence passed against a person convicted under the penal provisions of the NDPS Act, every appellate Court does have the power to suspend sentence passed against such a convict. Support for this submission is sought to be derived by Mr. Bhattacharjee from the case of Dadu alias Tulsidas v. State of Maharashtra reported in 2000 CriLJ 4619. It is also submitted by Mr. Bhattacharjee that in the facts of the present case, the sentence, passed against the accused-petitioner, deserves to be suspended and he deserves to be allowed to go on bail pending disposal of his appeal. 5. Resisting the above submissions made on behalf of the accused-petitioner, Mr. Munir, learned Addl. Public Prosecutor, contends that in the case of conviction of a person under the penal provisions of the NDPS Act, the power of the appellate Courts to suspend sentence by taking recourse to Section 389(1), Cr.P.C. stand, in the light of the provisions of Section 32-A of the NDPS Act, barred and, hence, the accused-petitioner's present application needs to be dismissed. 6. In order to determine the question as to whether an appellate Court, by virtue of the provisions of Section 389(1), Cr.P.C., can suspend the sentence passed against a convict under the NDPS Act, it may be pointed out that Section 389, Cr. P.C. reads as under: 389. Suspension of sentence pending the appeal; release of appellant on bail.--(1) Pending any appeal by a convicted person the appellate Court may for reasons to be recorded by it in writing order that the, execution of the sentence or order appealed against the suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (2) The power conferred by this section on an appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall- (i) where such person, being on bail, is sentenced to imprisonment, for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, Order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will award sufficient time to present the appeal and obtain the orders of the appellate Court under Sub-section (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life the time during which he is so released shall be excluded in computing the term for which he is so sentenced. 7. A careful reading of Section 389, Cr.P.C. shows that if, upon his conviction by a Court, a person, who has been sentenced to imprisonment for a term not exceeding three years or where the offence of which such person has been convicted is a bailable one and he is on bail, applies to the Court, which has convicted him, and satisfies it that he intends to present an appeal, the Court, which has convicted the accused, must release the convicted person on bail for such period as will afford him sufficient time to present his appeal and obtain orders of the appellate Court unless, of course, there are special reasons for the Court, which has convicted the person, to refuse to grant bail to the convicted person. A cautious reading of Section 389(1), Cr.P.C. further shows that though an appellate Court may suspend execution of the sentence and, of course, in a given case and in special circumstances, the order of conviction too, the fact remains that an accused person, on his conviction, can seek from the Court, which has convicted him, suspension of the sentence passed against him as a matter of right if he intends to prefer an appeal against his conviction and the Court, which has convicted such a person, has to, ordinarily, suspend such sentence and it is only for special reasons that the Court, which convicts an accused person, can refuse to suspend sentence; but the suspension of sentence by the appellate Court is quite different in the sense that the convict cannot, as a matter of right, demand suspension of sentence pending disposal of his appeal and the appellate Court too cannot, ordinarily, suspend sentence unless it records, in writing, the reasons for suspension of such sentence. 8. Thus, the provisions of Section 389, Cr.P.C., if patiently analysed, as a whole, makes it clear that when a trial Court, upon conviction, has sentenced the convicted person to a period of imprisonment not exceeding three years or where the offence of which the person stands convicted is a bailable one and he is already on bail, and if such a convicted person satisfies the Court, which has convicted him, that he intends to present an appeal, the Court shall, ordinarily, allow the convicted person to go on bail for such period as will afford sufficient time to the convicted person to present an appeal and obtain orders of the appellate Court. The right, so given to the convicted person(s) to go on bail, is, however, subject to one rider and the rider is that for special reasons, to be recorded by the Court, which has convicted such a person, the Court may refuse to allow such a person to go on ball. The right, so given to the convicted person(s) to go on bail, is, however, subject to one rider and the rider is that for special reasons, to be recorded by the Court, which has convicted such a person, the Court may refuse to allow such a person to go on ball. In short, to enable a convict to prefer an appeal against his conviction and/or sentence, granting of suspension of sentence by the Court, which convicts an accused person, has to be the order of the day and refusal to suspend sentence, if the convict has been sentenced to imprisonment for a term not exceeding three years or where the offence of which such a person has been convicted is a bailable one and the convict is on bail at the time of his conviction, has to be an exception. On the other hand, when the appeal is presented, a convicted person cannot, ordinarily, go on bail as a matter of right; rather, the appellate Court must assign reasons, in writing, if it has to suspend the sentence passed against such a person. Of course, upon suspension of the sentence, the convicted person has to be directed by the appellate Court to be released on bail or on his own bond unless his detention is required in connection with any other case. 9. The question, now, is as to whether the power given to an appellate Court, under Section 389(3), Cr.P.C. can be exercised, when a person, who seeks suspension of sentence, stands convicted of an offence under Section 20(b)(ii)(B) of the NDPS Act and when the sentence passed against him is imprisonment for a period of three years or more. My quest for an answer to the above question brings me, first, to Section 20 of the NDPS Act. 10. A careful perusal of Section 20 of the NDPS Act clearly reveals that Clause (a) of section is attracted when a person, in contravention of any of the provisions of the NDPS Act or any rule or order made or conditions of licence granted thereunder, cultivates any cannabis plant; whereas Clause (b) of Section 20 comes into force, when a person produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses, Cannabis. When a person cultivates Cannabis, he is punishable under Section 20(i); but when he produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses, Cannabis, the offence is punishable under Section 20(ii). What is, now, relevant to note is that Clause (ii) of Section 20 stands divided into three sub-clauses, namely, (A) (B) and (C). All these three sub-clauses prescribe distinct and separate punishments. When the quantity of Cannabis is small quantity, Sub-clause (A) of Clause (ii) of Section 20 is attracted; but when the quantity of Cannabis involved is commercial quantity, Sub-clause (c) of Clause (ii) of Section 20 is attracted. When the quantity of Cannabis does not fall either under Clause (A) or Clause (C), i.e., when it is neither small nor commercial quantity, Clause (B) of Section 20(ii)(B) comes into play. There is no dispute, in the present case, that the quantity of Cannabis was less than commercial quantity. 11. It is, therefore, clear that the offence, if any, committed by the appellant-petitioners is punishable under Section 20(b)(ii)(B). The question, now, is as to whether a person, who stands convicted under Section 20(b)(ii)(B), is entitled to seek suspension of the sentence passed against him and/or to allow him to go on bail pending disposal of the appeal. To put it a little differently, the question, now, is this: When a person is convicted under Section 20(b)(ii)(B) and the sentence passed is imprisonment for a period of three years or more, whether it is possible for an appellate Court to suspend the sentence passed against such a convicted person and to allow him to go on bail by taking recourse to Section 389, Cr.P.C.? While considering this aspect of the case, it may be noted that Section 32-A, which came to be inserted by the Amendment Act of 2001, with effect from 2-10-2001, reads as follows: 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 Section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted. 12. A cursory reading of Section 32-A clearly shows that notwithstanding anything contained in the Code of Criminal Procedure, 1973. 12. A cursory reading of Section 32-A clearly shows that notwithstanding anything contained in the Code of Criminal Procedure, 1973. or any other law for the time being in force, but subject to the provisions of Section 33, no sentence, awarded under the NDPS Act (other than Section 27), shall be suspended, remitted or commuted. Section 27 NDPS Act, I may point out, deals with punishment for consumption of narcotic drugs and psychotropic substances. 13. A deeper reading of Section 32-A also discloses that the bar in the application of the provisions of Section 389, Cr.P.C. to the case of a convicted person, under the NDPS Act, is subject to the provisions of Section 33. As Section 33 of the NDPS Act is of some relevance, it is reproduced hereinbelow: 33. Application of Section 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958.— Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974) or in the Probation of Offenders Act, 1958 (20 of 1958) shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under Section 26 or Section27. 14. From the provisions of Section 33 of the NDPS Act, it becomes transparent that except when a person, convicted of an offence under the NDPS Act, is under 18 years of age or unless a person is convicted for an offence punishable under Sections 26 or 27 of the NDPS Act, he can neither be given the benefit of the provisions of Section 360, Cr.P.C. nor can he be given the benefit of the provisions of the Probation of Offenders Act, 1958. Section 26, I may point out, applies to the holder of the licence issued under the NDPS Act or the rules framed thereunder. 15. What emerges from the above discussion is that a combined cursory reading of Sections 32-Aand 27 clearly shows that except where a person is convicted of an offence under Section 27 for having consumed a narcotic drug or a psychotropic substance, the provisions, contained under Section 389, Cr.P.C., which govern suspension of sentence, are not applicable. 15. What emerges from the above discussion is that a combined cursory reading of Sections 32-Aand 27 clearly shows that except where a person is convicted of an offence under Section 27 for having consumed a narcotic drug or a psychotropic substance, the provisions, contained under Section 389, Cr.P.C., which govern suspension of sentence, are not applicable. Viewed thus, it is clear that had Section 32-A remained without being judicial intervened, the power, under Section 389, Cr.P.C., could not have been invoked or exercised by a Court in respect of a person, who stood convicted of any offence under the penal provisions of the NDPS Act except when the punishment was for consumption of narcotic drugs or psychotropic substances or if the convict was a person, whose age was below 18 years. 16. What crystallizes from the above discussion is that had Section 32-A not been interfered with, the position of law would have been thus: Except where a person was convicted of an offence under Sections 26 or 27 of the NDPS Act or except when the person, convicted under any of the penal provisions of the NDPS Act, was under 18 years of age, the embargo, placed by Section 32-A, would have continued to apply and no Court, be the trial Court or the appellate Court, could have taken recourse to the provisions of Section 389, Cr.P.C. and suspend the sentence or the order of conviction passed against such a person or allow him to go on bail either to enable him to present his appeal or during pendency of the appeal, which such a convicted person might have had presented. 17. Notwithstanding, however, the legislatively imposed absolute bar on the powers of the appellate Court to suspend sentence as indicated hereinabove, a three-Judge Bench of the Supreme Court in Dadu (supra), which Mr. Bhattacharjee relies upon, has clarified that to the extent that Section 32-A completely bars the appellate Courts from exercising their power to suspend sentence awarded to a convict under the NDPS Act, such absolute bar is unconstitutional. In effect, thus, according to what the Apex Court has laid down in Dadu (supra), Section 32-A does not completely oust the appellate Court's jurisdiction to suspend sentence awarded to a convict under the NDPS Act. In effect, thus, according to what the Apex Court has laid down in Dadu (supra), Section 32-A does not completely oust the appellate Court's jurisdiction to suspend sentence awarded to a convict under the NDPS Act. The Apex Court has, however, made it clear that though Section 32-A is unconstitutional to the extent as indicated hereinbefore, the whole of the provisions of Section 32-Acannot be construed to be unconstitutional and, hence, the bar, imposed by Section 32-A, on the powers of the Government, to remit or commute sentence awarded to a convict for the offences indicated in Section 32-A read with Section 33 of the NDPS Act is valid and the Government does not have the power, in such a case, to remit or commute any sentence; but so far as the bar imposed on the judicial power of the appellate Courts to suspend sentence is concerned, such an absolute bar is unconstitutional, for, it is unjust and unfair and violative of Article 21 of the Constitution to provide a right of appeal against conviction, but completely disarm the appellate Courts from granting interim relief in the form of suspension of sentence, particularly, when no mechanism has been provided for early disposal of the appeal. 18. From the law laid down in Dadu (supra), it becomes transparent that notwithstanding the total bar, imposed by Section 32-A, on the powers of the appellate Courts, to suspend sentence, an appellate Court does have the power to suspend sentence even of a person, who stands convicted under the NDPS Act. The question, now, is as to what are the parameters of exercise of such power? This aspect of law has also been indicated in Dadu (supra), by making it clear that though Section 32-A is void in so far as it takes away the right of the Courts to suspend the sentence awarded to a convict under the NDPS Act, it neither entitles such a convict to ask for suspension of sentence as a matter of right in all cases nor would it absolve the Courts of their legal obligation to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the NDPS Act. The relevant observations made, in this regard in Dadu (supra), read thus: 27. The relevant observations made, in this regard in Dadu (supra), read thus: 27. Holding Section 32-A as void insofar as it takes away the right of the Courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the Courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. 19. In view of the fact that the appellate Court's power of suspending the sentence passed against a convict, under the NDPS Act, is circumscribed by the provisions of Section 37 thereof, it is appropriate to take note of the provisions of Section 37. One may note that Section 37 provides thus: 37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973- (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-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force in granting of bail. 20. From a careful reading of Section 37, it becomes clear that no person, when accused of an offence punishable for a term of imprisonment for a period of five years or more under the NDPS Act, shall be released on bail or on his own bond unless, amongst others, the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence, while on bail. What, thus, Section 37 makes clear is that apart from the fact that the sentence passed against a convict, under the NDPS Act, cannot be suspended without giving an opportunity to the Public Prosecutor to oppose such an application, the Court must be satisfied, if the offence is punishable for a term of imprisonment of five years or more, that (i) the accused is not guilty of such offence and that (ii) he is not likely to commit any offence, while on bail. 21. The Supreme Court has in Dadu (supra), reminded the Courts, in general, that the legislative mandate, as reflected by Section 37, needs to be adhered to and followed. In fact, while summarising the position of law, in this regard, the Apex Court has, in Dadu (supra), observed: 29. Under the circumstances the writ petitions are disposed of by holding that: (1) Section 32-A does not in any way affect the powers of the authorities to grant parole. (2) It is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a convict under the Act. (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate Court only and strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in this judgment. 22. Reminding the Courts, in general, of its duty to adequately punish an offender under the NDPS Act, the Apex Court in Dadu (supra), has observed: 7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons; while those persons, who are dealing in narcotic drugs, are instrumental in causing death or in inflicting death blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy. Union Territory of Goa 1990 (25) ECC 289 as under: 24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances in to this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its own wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine. 23. What, thus, emerges from the above discussion is that notwithstanding the absolute bar imposed by Section 32-A disarming the judiciary from exercising power to suspend sentence passed against a convict under the NDPS Act except to the extent that Section 32-A read with Section 33 permit, the Courts, as held in Dadu (supra), have, indeed, the power, under Section389, Cr.P.C., to suspend, in a given case, the sentence passed against a convict under the NDPS Act. However, while exercising the power of suspension of sentence, even in such a case, the Court is not only required to act within the parameters of the law as contained in Section 389(1), but must also bear in mind that in the case of an offence, which is punishable, under the NDPS Act, for a term of five years or more, suspension of sentence is not possible unless the Court has reasonable grounds to believe that the person, so convicted, is not guilty of the offence of which he stands convicted and that he is not likely to commit any offence, while on bail. 24. 24. There is, it may be pointed out, noticeable change introduced by the Legislature after the decision in Dadu (supra) has been rendered, for, Clause (b) of Sub-section (1) of Section 37 now reads thus: (b) no person accused of an offence punishable for (offences under Section19 or Section 24 or Section 27A and also for offences involving commercial quantity) 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. 25. The amended provisions of Clause (b) have been introduced by the Act 9 of 2001 with effect from 2-10-2001. The amendment, so introduced, make it clear that while, in the past, when the decision in Dadu (supra) was rendered, the limitation to grant bail, as indicated by Sub-clauses (i) and (ii) of Clause (b), were in respect of offences, which are punishable under the NDPS Act for a term of imprisonment of five years or more, but with effect from 2-10-2001, the limitations, imposed by Sub-clauses (i) and (ii) of Clause (b) of Sub-section (1) of Section 37, would come into play not only when a person is accused of an offence punishable under Sections 19 or 24 or 27, but also when the offence committed involves commercial quantity. 26. 26. In the backdrop of the law as indicated above, when one turns to the facts of the present case, what transpires is that though the appellant-petitioner had pleaded not guilty to the charge framed against him under Sections 20(b)(ii)(B) and had also denied, in his statement recorded under Section313, Cr.P.C., the veracity of the evidence given by the prosecution witnesses to the effect that he (i.e., the appellant-petitioner) had been found in possession of 10 kgs of Ganja (Cannabis), what is curious to note is that while cross-examining the driver of the auto-rickshaw, who had claimed, in his evidence, that the present appellant-petitioner along with two others (who are not applicants in the present Miscellaneous Application), had been apprehended, while carrying Ganja (Cannabis) in the said auto-rickshaw, it was not even suggested to the driver that the appellant-petitioner had not been found carrying the Ganja (Cannabis), in question, and/or that the appellant-petitioner was not in conscious possession thereof. In the face of such cogent evidence available against the appellant-petitioner, it is, at this stage, difficult to say, albeit tentatively, that the appellant-petitioner has been able to make out a case for suspension of his sentence and to allow him to go on bail. 27. In short, thus, in the present case, the offence, which the appellant-petitioner, according to the learned trial Court, has committed is not under Sections 19 24 or 27 nor is the quantity of Ganja (Cannabis), claimed to have been found in possession of the appellant-petitioner and his co-accused, involved commercial quantity. Hence, the limitations, imposed by Clause (b) of Sub-section (1) of Section 37, are not attracted to the present case. The fact, however, remains, as I have already indicated above, that while, for a person, who stands sentenced to imprisonment for a term not exceeding three years or where the offence of which such person has been convicted is bailable and he is on bail, it is enough, in order to enable him to seek suspension of his sentence, to satisfy the Court, which convicts him, that he intends to present an appeal, but when such a person seeks suspension of sentence pending appeal, the appellate Court has to assign, in terms of Sub-section (1) of Section 389, Cr.P.C., reasons, in writing, for suspending the execution of the sentence. Thus, there must exist adequate reasons for the appellate Court if it has to suspend the sentence passed against a person for a term of even less than three years. In the present case, though the bar, imposed under Section 32-A read with Section 37, does not apply inasmuch as the sentence passed against the convicted person is three years of rigorous imprisonment, the fact remains that the evidence, as indicated hereinabove, is prima facie clinching against the convicted person. Hence, in such a situation, it would be, against the interest of justice and highly improper, to suspend the sentence passed against the present convicted person and allow him to go on bail. 28. In the result and for the reasons discussed above, this Miscellaneous Application, for suspension of the sentence passed against the petitioner and the prayer for bail, fails and the same shall accordingly stand dismissed. 29. With the above observations and directions, this Misc. case shall stand disposed of. Application dismissed