2001 Supreme(SC) 1109

2001(6) Supreme 135
SUPREME COURT OF INDIA
(From Delhi High Court)
G.B. Pattanaik and Mrs. Ruma Paul, JJ.
Jasbir Singh -Appellant
versus
Vipin Kumar Jaggi & Ors. -Respondents
Criminal Appeal Nos. 826-827 of 2001
(Arising out of SLP (Crl.) Nos. 3884-3885 of 2000)
Decided on 16-8-2001
Counsel for the Parties :
For the Appellant : V.A. Mohta, Senior Advocate, Harjinder Singh, Ms. Vandana Sharma, Navdeep Brar, Advocates.
For the Respondent : Sole J. Sorabjee, Attorney General, Anoop G. Choudhary, Senior Advocates, Ms. Sushma Suri, Ms. Sunita Sharma and Manish Singhvi, Advocates.
For the Respondent No. 1 : Sudhir Chandra, Senior Advocate, Smt. Nitya Ramakrishnan, M.A. Chinnaswamy and Achintya Dvivedi, Advocates.

VERY IMPORTANT POINT
Central Govt. can grant immunity to a co-accused from prosecution of offences under NDPS Act by exercising power u/s. 64 of NDPS Act after the Sessions Judge has rejected an application u/s 307 Cr. P.C by the said co-accused for grant of pardon.

Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 64-Immunity to co-accused from prosecution under-Challenged by main accused-Scope of Section 64-Whether it can be exercised by the Central Govt. in favour of a person (respondent-1, co-accused in this case) after the Sessions Judge has rejected an application by such person (supported by prosecution but opposed by appellant) for pardon under Section 307, Cr.P.C. 1973? (Yes)-Contentions that powers u/s 64 NDPS Act could not be exercised before the commencement of trial and that once Court has rejected respondent No. 1 s application u/s. 307 Cr.P.C. it was not open to Govt. to grant him immunity u/s 64 of NDPS Act-Whether tenable in law? (No)- Case law discussed-[Cr. P.C 1973- Sections 306, 307, 311, 321-(Old Cr.P.C. 1898-Sections 337 and 338 -I.T. Act, 1961-Section 291-Foreign Exchange Regulation Act, 1973 -Section 60-Constitution of India -Art. 20(2)]-Appeal dismissed.

       Held : The submissions appear to us to proceed on a misunderstanding of the role of the Court, the prosecutor and of the NCB in the granting of pardon in trials for offences under the Act and a misreading of the provisions of Section 64. (Para 12)

       After analysing the standard, held : Judged by this standard, the first order of the Sessions Judge refusing pardon to the respondent No. 1 even though it was actively canvassed for by the Special Public Prosecutor, was wrong. It was not for the Sessions Judge to have considered the possible weight of the approvers evidence, even before it was given. In any case, the evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspicion. But the suspicion may be removed and if the evidence of an approver is found to be trustworthy and acceptable then that evidence might well be decisive in securing a conviction [See Suresh Chandra Bahri v. State of Bihar, 1995 Supp. (1) SCC 80, 106]. The Sessions Judge could not and indeed should not have assessed the probable value of the possible evidence of the respondent No. 1 in anticipation and wholly in the abstract. The role of the prosecutor under Section 307 is distinct and different from the part he is called on to play under the provisions of Section 321 Cr.P.C. under Section 321, the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. The most noticeable difference between this Section and Section 307 of the Act is that unlike the grant of pardon under Section 307, withdrawal from prosecution under Section 321 Cr.P.C. is unconditional although it does provide for the express permission of the Central Government is specified cases. Section 321 also does not spell out the circumstances under which the power may be exercised, either by the prosecution or by the Court in granting consent. However, it has been judicially recognised that implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances [Subhash Chander v. The State (Chandigarh Admn.) AIR 1980 SC 423] or it may be that broader considerations of public peaces larger considerations of public justice and even deeper considerations of promotion of long-lasting security in a locality, or order in a disorderly situation of harmony in a faction milieu, or halting a false and vexatious prosecution in a Court, may persuade the Executive, probono publico, to sacrifice a pending case for a wider benefit. (M.N. Sankaranarayanan Nair v. P.V. Balakrishnan, AIR 1972 SC 496). In contrast the power of tendering pardon under Section 307 is restricted to one consideration alone namely the obtaining of evidence from the person the whom pardon is granted relating to the offences being tried. But it needs to be noted at this stage that the power under Section 321 not only emphasises the role of the Executive in the trial of offences but also that the Executive can exercise the power at any time during the trial but before the judgment is delivered. This will be relevant in construing the language of Section 64 of the Act. (Paras 18, 19 & 20)

       Referring to provisions of NDPS Act, held : It is, in the circumstances, clear that when cases are started on the complaint of the NCB, it is not a mere complainant but is the Executive and it must act in discharge of a mandate statutorily cast upon it to effectively check among other activities, the illegal dissemination and smuggling of drugs. (Para 23)

       Held further : Under Section 64(1) of the Act, the Central Government or the State Government may tender immunity from prosecution for any offence under the Act or under the Penal Code or under any Central or State Act with a view to obtaining the evidence of any person appearing to have been directly or indirectly concerned in or privy to the contravention of any of the provisions of the Act. The limitations on the exercise of the power are two fold: first the Central Government or the State Government, as the case may be, must form an opinion that it is necessary or expedient to grant immunity to such a person. The reasons for such opinion are required to be recorded in writing. The second limitation on the exercise of the power under Section 64(1) is that it can be granted only conditionally - the condition being that the person granted the immunity must make a full and true disclosure of the whole circumstances relating to the contravention. The immunity is limited only to the offence in respect of which a tender of evidence is made [Section 64(2)]. If the condition subject to which the immunity is granted is not fulfilled by the person to whom the immunity has been tendered, after recording a finding to that effect by the Central Government or the State Government, the immunity shall be taken to have been withdrawn and such person may be tried for the offence in respect of which the tender of immunity was made or for any other offence of which he appears to have been guilty in connection with the same matter :

        Section 64. Power to tender immunity from prosecution.-(1) The Central Government or the State Government may, if it is of opinion (the reasons for such opinion being recorded in writing) that with a view to obtaining the evidence of any person appearing to have been directly or indirectly concerned in or privy to the contravention of any of the provisions of this Act or for any rule or order made thereunder it is necessary or expedient so to do, tender to such person immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act or State Act, as the case may be, for the time being in force, on condition of his making a full and true disclosure of the whole circumstances relating to such contravention. (2) A tender of immunity made to, and accepted by the person concerned, shall, to the extent to which the immunity extends, render him immune from prosecution for any offence in respect of which the tender was made. (3) If it appears to the Central Government or, as the case may be, the State Government, that any person to whom immunity has been tendered under this section has not complied with the conditions on which the tender was made or is wilfully concealing anything or is giving false evidence, the Central Government, or as the case may be, the State Government, may record a finding to that effect and thereupon the immunity shall be deemed to have been withdrawn and such person may be tried for the offence in respect of which the tender of immunity was made or for any other offence of which he appears to have been guilty in connection with the same matter.

       The underlying rationale of Section 64 is that the Government/NCB which is vitally interested in getting hold of the culprits, must be allowed to assess the strength of the evidence available to it and if necessary, bolster its case with evidence of an accomplice. Therefore, the Section serves the same purpose as the grant of pardon to approvers under Section 307 Cr.P.C. The object of Section 64 being the same as Section 307, it should logically follow that it may be exercised at any time during the course of the trial. (Paras 26 & 27)

       Words take their colour from the context in which they are used. Given the nature and object of the power, the word prosecution must in the context of Section 64 mean the entire proceeding till the judgment of the Court is delivered. (Para 28)

       Held also : There is thus nothing in Section 64 of the Act to circumscribe the power of the Central or State Government under Section 64 to a point of time prior to the commencement of the trial. Therefore, if in any trial of offences under the Act, it is felt by the Government, in this case the NCB, that it is necessary to have the evidence of the co-accused, it can, subject to the conditions specified in Section 64 (1), withdraw the case against such co-accused by granting him immunity. (Para 31)

       Held thereafter : The order under Section 64 was fully operative when the applications under Section 311 to examine the respondent No. 1 were filed by the prosecution before the Sessions Judge. The refusal of the applications under Section 311 by the Sessions Judge in fact would result in the withdrawal of the immunity granted to the respondent No. 1 under Section 64 since the immunity had been granted to the respondent No. 1 subject to the condition that evidence would be tendered by him in the pending cases. The Sessions Judge could not sit in appeal over the decision of the NCB more so when no one had challenged the order under Section 64 before him. The power conferred on the NCB is not an arbitrary one. Reasons are required to be recorded in writing. Needless to say, the reasons would have to be appropriate and germane to the object sought to be achieved by the exercise of such power. We have scrutinised the order dated 18th August 2000 and are satisfied that the reasons recorded for granting the immunity to the respondent No. 1 are neither extraneous nor relevant. There is no conflict between the powers exercised by the Court under Section 307 and by the Government under Section 64. All that Section 64 does is to bring expressly to the fore the role which the Executive already has to play under Section 307. The only difference is in the authority which orders the pardon or the grant of immunity. Even under the Cr.P.C., 1898 it was held that the provisions of Section 337 and 338 of the Code contemplated concurrent jurisdiction in the Magistrate and the District Magistrate to tender a pardon. The powers were independent so that when the Magistrate rejected the grant of pardon under Section 337 it did not take away the power or jurisdiction of the District Magistrate to entertain a further application for grant of pardon. (See Kanta Prashad v. Delhi Administration, 1958 SCR 1219 and State of U.P. v. Kailash Nath Agarwal and Ors. 1973(3) SCR 728). Assuming there is a conflict between the powers of the Court under Section 307 Cr.P.C. and the power of the Central Government under Section 64 of the Act, then it must be held that Section 64 would prevail both on the ground that the Act being a special Act overrides the Cr.P.C. which is a general Act and also because the later enactment must prevail over the earlier one. [See (1) Sarwan Singh & Anr. v. Kastguri Lal 1977(2) SCR 421; (2) Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. and Anr. 1993 (2) SCC 144; (3) Allahabad Bank v. Canara Bank and Anr.; 2000(4) SCC 406 and (4) Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. and Others, 2001(3) SCC 71]. We are told that after the decision of the High Court, the respondent No. 1 has in fact tendered the evidence promised by him. To refuse him the immunity now would not only be illegal but particularly unjust. (Paras 34, 35, 36, 37 & 38)

       Held finally : For the reasons aforementioned, we uphold the decision of the High Court and dismiss this appeal. (Para 39)

       (ii) NDPS Act, 1985-Section 64 -Cr.P.C. 1973-Section 307-Application u/s 307 Cr.P.C. by prosecution-Dismissed by Sessions Judge-Writ against in High Court-Appellant not made party-Order of Sessions Judge set aside-Appeal to Supreme Court by Special Leave by appellant-Preliminary objection-Appeal is not maintainable-Whether has force? (No)-(Constitution of India-Articles 136, 226).

       Held : At the outset a preliminary objection raised by the respondent No. 1 is dealt with. According to the respondent No. 1 this appeal has been preferred from an order passed in proceedings to which the appellant was not a party and the appellant has not challenged the order by which his application for intervention was rejected. It is contended that in the circumstances, the appeal preferred before us is not maintainable. The objection, assuming that it had some force, does not survive the order passed by this Court on 3rd November 2000 granting permission to the appellant to file the special leave petition. (Para 10)