IMPORTANT POINT
Except for conviction for offence u/s 27 of the NDPS Act no suspension of sentence for conviction under other sections can be ordered u/s 389 Cr. P.C.

JUDGMENT

S.D. Jha, J. - Convict-appellant Giriraj (hereinafter called 'the accused') by judgment dated 13.9.1991 in S.T. No. 230 of 1990 delivered by the first Additional Sessions Judge Neemuch District Mandsaur has been convicted under section 8/18 of the Narcotics Drugs and Physchotrophic Substances Act 1985 (hereinafter called 'the Act') and sentenced to under go rigorous imprisonment for ten years and to pay a fine of rupees one lac, in default of payment of fine, further rigorous imprisonment for two years. By this application under section 389 (1) of the Code of Criminal Procedure 1973 (hereinafter called 'the Code') read along with Section 36-B of the Act prays for suspension of execution of sentence and release on bail.

2. At the hearing of the application Shri Brijesh Pandya learned counsel for the accused, relying on order dated 25.3 .1991 in Rameshwar v. The State1 passed by a Single Judge of this Court (Hon. Shri M.W. Deo J.) submitted that inspite of newly introduced section 32-A in the Act, it was competent for this Court to order suspension of execution of sentence even in case of conviction for an offence other than under section 27 of the Act. For the same purpose he also relied on a decision of Madras High Court in Kantilal Jain and others v. Assistant Collector (CIU) Madurai & others2 and opinion of third Judge in Phasalu v. State of Kerala3 on difference between the Judges of Divisional Court in the same case of Phasalu reported in 1992 (1) EFR 224. This decision had taken the same view as that of Madras High Court already referred to above.

3. Shri Girish Desai the then Panel Lawyer representing the State however strongly opposing the contentions of Shri Pandya submitted that unlike section 432 of the Code Section 32-A of the Act had words. of general import and there is nothing therein to show that it is to apply to appropriate Government, as is specifically mentioned in section 432 of the Code. In absence of reference to appropriate Government in this section, it would apply also to this Court for conviction of offences other than section-27 of the Act, while considering the application for suspension of execution of sentence under section 389 (1) of

1. Cr. Appeal No. 65 of 1991 Decided on 25.3.1991 (M.P.)

2. 1992(1) EFR 587.

3. 1992(1) EFR 230,

the Code, In support of his contention Shri Desai referred to a decision of Supreme Court in narcotics Control Bureau v. Kishanlal and others4 which holds that High Court's power under section 439 of the Code to bail is subject to limitations under section 37 of the Act and the limitation is applicable to the High Court. He also referred to Ishwarsingh M, Rajput v. State of Gujarat5,

4. The newly inserted section 32-A in the Act reads as under:

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) of 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."

5. Conviction of the accused is for offence under section 8/18 of the Act, an offence other than section 27 of the Act. In the instant case, learned counsel also agreed that section 33 of the Act is not attracted. The question for consideration is whether in view of newly introduced section 32-A for conviction of offence other than section 27 of the Act, this Court can order suspension of execution of sentence and release of the accused on bail while, exercising power under section 389.

6. Order dated 25.3.1991 to the extent it relates to interpretation of the scope and content of Sections 32-A and 36-B or the Act cannot be said to be of interim or interlocutory nature so as not to operate as precedent in other appeals involving suspension of execution of sentence for offences other than for conviction under Section 27 of the Act which is expressly saved by Secti