1999 Supreme(SC) 333

1999(4) Supreme 26
Supreme Court of India
(From Punjab & Haryana High Court)
K.T. Thomas & M.B. Shah, JJ.
Maktool Singh -Appellant
versus
State of Punjab -Respondent
Criminal Appeal No. 312 of 1999
(Arising out of SLP (Crl.) No. 35 of 1999)
Decided on 17-3-1999
Counsel for the Parties :
For the Appellant : Vikram Chaudhary and Mahabir Singh, Advocates.
For the Respondent : R.S. Sodhi, Advocate.

Important Points
1. Sentence passed on a convicted person under Narcotic Drugs and Psychotropic Substances Act cannot be suspended during pendency of appeal. Section 32A of NDPSA has taken away the powers of the Court to suspend a sentence passed on persons convicted of offences except Section 27 either during pendency of any appeal or otherwise.
2. Powers of the Government under Sections 432, 433 and 434 of Cr.P.C., has been taken away by Section 32A of the Narcotic Drugs and Psycho­tropic Substances Act.
3. Section 32A of the Narcotic Drugs and Psychotropic Substances Act overrides all the provisions of Cr.P.C. and it would have an overriding effect with regard to the powers of suspension, commutation and remis­sion provided under the Cr.P.C.

Headnote:(i) Narcotic Drugs and Psycho­tropic Substances Act, 1985-Sec­tions 32A and 36B read with Sections 389, 432, 433 and 434, Cr.P.C.-Suspension of sen­tence-Prohibi­tion to-Can sentence pass­ed on convicted person under NDPSA be suspended during pendency of appeal? - No - Section 32A prohi­bits suspension except in case of offe­nce u/s 27-Argument that Section 36B preserved powers of High Court under Chapter XXIX of Cr.P.C. to suspend sentence-Not tenable-Plea that Section 32B only curbs Gov­ernments power and not power of High Court-Unten­able-Section 32A overrides all provisions of Cr.P.C.-Powers u/ss 432, 433 and 434 also taken away -Long pendency of appeals would result in miscarriage of justice-Solution to problem to be worked out by Parliament-Till then High Courts should direct Registry to board appeals on priority basis and dispose of appeal as early as possible.

       Held : A plain reading of Section 32A is that it prohibits suspension of a sentence awarded under the Act except in the case of an offence under Section 27. To make the aforesaid meaning clearer the legisla­ture has added a non obstante limb to the Section to the effect that such prohibition is operative in spite of any other provision con­tained in the Code of Criminal Procedure, 1973 (for short ‘the Code’) or under any other law. But the impact of the aforesaid ban is sought to be diluted with the help of Section 36B of the Act. (Para 4)

       The argument advanced before us is that when Section 36B of the Act preserved the powers of the High Court under Chapter XXIX of the Code while dealing with an appeal challenging conviction under the Act, it must be deemed to have preserved all the powers mentioned in Section 389 of the Code including the power to suspend the sentence. But we cannot give accord to that argument on the following grounds. When Section 36B of the Act is juxtaposed with Section 32A the latter must dominate over the former mainly for two reasons. First is that Section 32A overrides all the provisions of the Code, by specific terms, through the non obstante limb incorporated therein. Second is that Section 36B has clearly indicated that its applicability is subject to the extent of adaptability because of the words employed therein “so far as may be applicable”. This means, the High Court can exercise powers under Chapter XXIX of the Code only to the extent such powers are applicable. In other words, if there is an interdict against ap­plicability of any provision, the High Court cannot use such provi­sion, albeit its inclusion in Chapter XXIX of the Code. That is the effect of employment of the words “so far as may be applicable” when a statute incorporates provision of another statute. Otherwise Section 32A of the Act must have been intended for covering some other field altogether. (Paras 6 & 7)

       Section 433 of the Criminal Procedure Code deals with the powers of the Government to commute sentence. The contention is that Parliament has sought to curb the aforesaid powers of the Government through enactment of Section 32A of the Act, and not the power of the High Court to suspend sen­tence. If the intention of Parliament in enacting Section 32A of the Act is only to curb Government’s powers under Sections 432 and 433 of the Code the Parliament would, instead of using the present all covering words in the non obstante clause (“notwithstanding anything contained in the Code or in any other law”) have employed the words “notwith­standing anything contained in Chapter XXXII of the Code”. Precision and brevity are generally the hallmarks of legislative draftsmanship. Hence lesser words for achieving the purpose would have been employed by the legislature while framing a provision in the statute. (Paras 7 & 8)

       That apart, could parliament have laboured so much if its only object was to bridle the powers of the Government under Section 432 and 433 of the Code because even apart from those provisions a Government could achieve it by exercising the constitutional powers. Article 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 contains similar power which Government 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. (Para 9)

       If the object of S. 32A of the NDPS 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 Section 432 of the Code, the appropriate Government can suspend, remit or commute sentences in exercise of the constitutional functions. (Para 11)

       For the aforesaid reasons we are not impressed by the contention that the sole object of incorporating a provision like Section 32A in NDPS Act was to impose curb on the executive power under Sections 432 and 433 of the Code to suspend, remit or commute the sentence passed on a particular accused. (Para 12)

       Only offences exempted from the purview of rigors contained in Sec­tion 37 on the bail provisions are those under Sections 26 and 27 of the Act. The former is punishable up to a maximum imprisonment for three years and latter up to a maximum imprisonment for one year. For all other of­fences the court’s power to release an accused on bail during the period before conviction has been thus drastically curtailed by pro­viding that if the Public Prosecutor opposes the bail application no accused shall be released on bail, unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If the position was thus even before a trial Court completes adjudica­tion, the position regarding bail cannot be more liberal and lighter after the trial Court finds him guilty of the offence on completion of the adjudication. The interpretation sought to be placed by the learned counsel would lead to the consequence that power of court to release an accused on bail during pre-conviction is rigorous while it will be liberal during post-conviction period. We do not think that Parliament would have intended such a consequence to take place. Section 32A was intended to plug the lacuna which existed during the pre-amendment stage. (Paras 16 & 17)

       The upshot of the above discussion is that Section 32A of the Act has taken away the powers of the court to suspend a sentence passed on persons convicted of offences under the Act (except Section 27) either during pendency of any appeal or otherwise. Similarly, the power of the Government under Section 432, 433 and 434 of the Criminal Procedure Code have also been taken away. Section 32A would have an overriding effect with regard to the powers of suspension, commutation and remission provided under the Criminal Procedure Code. (Para 23)

       Before parting with the matter we must deal with a possible fall-out of adopting such a view. Learned counsel for the appellant has voiced a concern that if High Courts have no power to suspend sentence under any contingency its consequence is that long duration of pendency of appeals would result in serious miscarriage of justice in many cases. We are aware of such hard consequences which might erupt. The solution to such problems can be worked out by Parliament. Till then the High Courts should direct the Registry to board appeals under the Act on a priority basis and dispose them of as early as possible. As a tempo­rary measure to lessen the problem we direct the Registry of each High Court to include every appeal (against conviction of offences under the Act) in the hearing list as soon as such appeal becomes ripe for hearing. We express the hope that the Bench of the High Court con­cerned would give preference to such appeal for early hearing. (Para 24)

       (ii) Code of Criminal Procedure, 1973-Sections 389 read with Sections 32A and 36B of the Narcotic Drugs and Psychotropic Substances Act, 1985-Suspension of sentence during pendency of appeal -In cases of appeals arising under NDPSA High Courts power to suspend sentence during pendency of appeal is restrained-Section 32A of NDPSA over­rides all provisions of Cr.P.C.-High Court cannot suspend sentence of convicted persons under NDPSA during pendency of appeal. (Paras 6, 7, 9, 11, 12, 16, 17, 23 & 24)

       (iii) Code of Criminal Procedure, 1973-Sections 432, 433 and 434 read with Sections 32A and 36B of the Narcotic Drugs and Psychotropic Substances Act, 1985 -Government’s power to suspend, commute and remit sentence-In cases falling under NSDP Act-Section 32A of NSDPA over­rides all provisions of Cr.P.C.-Powers under Sections 432, 433 and 434 also taken away.