The High Court's power to suspend sentences during the pendency of appeals is subject to the limitations imposed by Section 32-A of the NDPS Act, which prohibits the suspension, remission, or commutation of sentences awarded under the Act.

V.S.Aggarwal, J.

1. The court question involved in the bunch of criminal miscellaneous petitions is, if the High Court has the power to suspend the sentence or release the convicted persons on bail under the Narcotic & Drugs & Psychotropic Substance Act, 1985 (hereinafter described as an Act) during the pendency of the appeal.

2. To take grip of the situation the basic common fact be well settled. All the petitioners have been convicted under different provisions of the Act. They all seek suspension of the sentence by invoking the provisions of Section 389 of the Code of Criminal Procedure, 1973. The objection of the learned counsel for the State is that sentence cannot be suspended during pendency of the appeal in terms of specific provisions of the Act.

3. The Law started taking shape with the Amendment Act (2 of 1989). Certain provisions of the Act were amended or substituted. Section 37 of the Act reads as under :-

"37. Offences to be cognizable and non-bailable:-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) - (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless- (i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor oppose the application, the Court is satisfied that there are reasonable grounds for believing and that he is not likely to commit any offence while on bail.

2. The limitation on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force on granting of bail.

4. The question had arisen if the High Court had the power to admit a person accused of an offence on bail during the pendency of the trial. It was set at rest with the decision of the Supreme Court in the case of Narcotics Control Bureau v. Kishan Lal, A.I.R. 1991 S.C. 559. After scanning through various precedents, the Apex Court Finally held that the powers of the High court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the Act. The specific findings are reproduced below for the sake of facility:-

"For all the aforesaid reasons, we hold that the powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the Powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly."

5. In other words, the conclusions arrived at by the Supreme Court were that a person accused of an offence punishable for a term of imprisonment of 5 years or more can only be admitted to bail during the trial if the Court on an application being opposed by the Public Prosecutor is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. There is no doubt that such a provision would be attracted only during the Course of trial and not after the person is convicted of an offence by Special Court or Court of Session. Power to exercise under Section 439 of Code of Criminal Procedure is different than the powers exercisable under Section 389 of the Code of Criminal Procedure. Here it is the suspension of the order against the accused and consequent release of the convict on bail. It is not so, while a person is facing trial.

6. Section 32-A was also added in the Act. By virtue of the Amendment Act 2 of 1989 w.e.f. 29.5.1989, the said provisions reads as under :-

"32-A. No suspension, remission or commutation in any sentence awarded under this Act.- Notwithstanding anything contained in the Code of