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2008 Supreme(Gau) 114
IN THE HIGH COURT OF GAUHATI
IQBAL AHMED ANSARI, J.
Dinesh Goyenka – Appellant
Vs.
State of Assam – Respondent
Decided On: 12.02.2008
Headnote:
Criminal Procedure Code - Section 389(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 – Jurisdiction – Acquittal – Imprisonment - Suspension of sentence pending appeal release of appellant on bail.--(1) Pending any appeal by a convicted person appellate Court may for reasons to be recorded by it in writing order that execution of sentence or order appealed against suspended and, also if he is in confinement that he be released on bail, or on his own bond – Held, Fact however remains as court have already indicated above that while for a person who stands sentenced to imprisonment for a term not exceeding three years or where offence of which such person has been convicted is boilable and he is on bail it is enough in order to enable him to seek suspension of his sentence, to satisfy Court, which convicts him that he intends to present an appeal but when such a person seeks suspension of sentence pending appeal appellate Court has to assign, in terms of Sub-section (1) of Section 389, reasons in writing for suspending execution of sentence - Thus there must exist adequate reasons for appellate Court if it has to suspend sentence passed against a person for a term of even less than three years - In present case though bar imposed under Section 32-A read with Section 37 does not apply inasmuch as sentence passed against convicted person is three years of rigorous imprisonment fact remains that evidence as indicated hereinabove is prima facie clinching against convicted person - Hence, in such a situation it would be against interest of justice and highly improper to suspend sentence passed against present convicted person and allow him to go on bail - Application dismissed
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 th
