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2008 (2) Crimes 155 (Gau.)
GAUHATI HIGH COURT
I.A. Ansari, J.
Baba Saikia —Petitioner
versus
State of Assam —Respondent
Misc. Case No. 4319 of 2007 (in Criminal Appeal No. 237 of 2007)
Decided on 7.12.2007
Counsel for the Parties:
For the Petitioner:G. Ujir, Advocate
For the Respondent: B.B. Gogoi, A.P.P.
IMPORTANT POINT
Power under Section 389, Cr.P.C. cannot be invoked or exercised by a Court in respect of a person, who is convicted by it for any offence under the penal provisions of the NDPS Act except when the punishment is for consumption of narcotic drugs or psychotropic substances.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 18, 26, 27 and 32A and 33—Criminal Procedure Code, 1973—Section 389—Appellant convicted by Trial Court for being found in possession of 25 grams of opium and six months imprisonment sentence was awarded—Trial Court granted bail till filing of appeal exercising power under Section 389 Cr.P.C.—Legality—Except where a person was convicted under Section 27 of NDPS Act, provisions under Section 389 Cr.P.C. were not applicable —Trial Court committed serious error of law and impugned order was liable to be set aside—Prayer for suspension of sentence rejected as not maintainable.
Held: 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 Section 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.
What emerges from the above discussion is that a combined reading of Sections 32A and 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 the power under Section 389, Cr.P.C. cannot be invoked or exercised by a Court in respect of a person, who is convicted by it for any offence under the penal provisions of the NDPS Act except when the punishment is for consumption of narcotic drugs or psychotropic substances.
What crystallizes from the above discussion is that except where a person is convicted of an offence under Section 26 or 27 of the NDPS Act, or except when the person, convicted under any of the penal provisions of the NDPS Act, is under 18 years of age, the embargo, placed by Section 32A, continues to apply and no Court, be the Trial Court or the Appellate Court, can take 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 may have presented.
What logically follows from the above discussion is that the learned Sessions Judge committed, in the present case, serious error of law, when he allowed the present petitioner, by order, dated 25.9.2007, to go on bail.
In view, however, of the fact that the order, granting bail to the appellant-petitioner, is subject to the order that may be passed in this appeal, no specific order is required to be passed by this Court cancelling the order, dated 25.9.2007, whereby the appellant-petitioner was allowed to go on bail by the learned Trial Court and it is enough if this Court, now, rejects the prayer for suspension of the sentence and prayer for bail made by the appellant-petitioner.
In the result and for the reasons discussed above, the prayer for suspension of sentence and also the prayer for allowing the appellant-petitioner to go on bail are hereby rejected as not maintainable in law and the appellant-petitioner is hereby directed to surrender (Paras 14 to 19)
Result: Misc. case disposed of.
JUDGMENT
I.A. Ansari, J.—By judgment and order, dated 25.9.2007, passed in Special Case No. 1/2002, by the learned Sessions Judge, Noth Lakhimpur, the petitioner herein stands convicted under Section 18(a) of the Narcotic Drugs and Psychotropic Substances Act, 1985, (in short, ‘the NDPS Act’) for having been found in possession of 25 grams of opium and sentenced to suffer rigorous imprisonment for a period of six months and pay fine of Rs. 2,000 and, in default of payment of fine, to undergo rigorous imprisonment for further period of one month. Aggrieved by the order, dated 25.9.2007, aforementioned, the present petitioner has preferred an appeal to this Court, which has been registered as Criminal Appeal No. 237/2007. The appeal stands admitted for hearing.
2. On the ground that the petitioner intends to present an appeal against the order of conviction and sentence, the learned Trial Court allowed the petitioner to remain on his previous bail until the time the petitioner presents an appeal.
3. With the help of the present application, the petitioner prays that he may be allowed to remain on his previous bail until disposal of the appeal.
4. I have heard Mr. G. Ujir, learned counsel for the applicant, and Mr. B.B. Gogoi. learned Additional Public Prosecutor, Assam.
5. Before coming to the question as to whether the learned Trial Court could have, in the facts and circumstances of the present case, allowed the petitioner to go on bail so as to enable him to present the appeal before this Court, appropriate it is that the provisions of Section 389, Cr.P.C. whereunder the power has been exercised by the learned Sessions Judge, be taken note of. In this regard, 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—(l) 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 be 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.
(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.”
6. 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 the Appellate Court may su
