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Amarjit Singh & Prem Parkash v. State (Delhi Admn). .
Structured Summary of the Opinion
Factual and Procedural Background
Two separate applications were filed by two appellants. The preliminary issue framed for decision was whether the High Court has jurisdiction to admit the appellants to bail following their conviction under the Narcotic Drugs & Psychotropic Substances Act, 1985 ("the Act").
Both appellants were convicted under section 20 of the Act. One appellant was sentenced to rigorous imprisonment for 20 years and to pay a fine of Rs. 2,00,000 (with default simple imprisonment for 2 years). The other appellant was sentenced to rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000 (with default simple imprisonment for 1 year). The State raised a preliminary objection contending that, in view of section 32A of the Act, this Court (the High Court) has no jurisdiction to grant bail to the appellants.
Legal Issues Presented
- Whether the High Court has jurisdiction to admit convicted persons under the NDPS Act to bail pending hearing of their appeals.
- Whether section 32A of the NDPS Act (which bars suspension, remission or commutation of sentences awarded under the Act) or the non‑bailable/cognizable character of offences under section 37 of the Act removes or limits the High Court's power under section 389 of the Code of Criminal Procedure to suspend execution of sentence and release a convicted appellant on bail pending appeal.
Arguments of the Parties
State's Arguments
- The State contended that section 32A of the NDPS Act bars the Court (including the High Court) from granting bail to persons convicted under the Act; in essence, the State maintained that the Act removes this jurisdiction.
- Reliance was placed on decisions (e.g., the Full Bench of the Kerala High Court in Berlin Joseph) which held that the High Court has no power to suspend sentence of a convicted person under the Act during pendency of appeal or revision.
Appellants' Arguments
- The appellants relied on section 36B of the NDPS Act, which permits the High Court to exercise, so far as may be applicable, the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure — thereby bringing into play section 389 of the Code (suspension of sentence pending appeal and release on bail).
- Counsel for appellants referred to decisions (including a Lucknow Bench decision in Ram Charan v. Union of India) but did not press any constitutional challenge based on Articles 14 and 21 in the present case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dr. Partap Singh & Anr. v. Director of Enforcement, Foreign Exchange Regulation Act and others (AIR 1985 S.C. 989) | Construction of the expression "so far as may be" — that provisions may be generally followed to the extent possible when incorporated by reference. | The court relied on this authority to support the view that the phrase in section 36B ("so far as may be applicable") permits applying provisions of Chapters XXIX/XXX of the Code where generally possible; thus section 389 could be applicable to appeals under section 36B. |
| Babubhai Muljibhai Patel v. Nandlal Khodidas Barto & Ors. (AIR 1974 S.C. 2105) | Interpretation of phrases like "as far as it can be made applicable" — applying procedural provisions with due regard to the nature of proceedings. | Used to illustrate that procedural Code provisions may be applied to other proceedings to the extent they can be made applicable; supported applying section 389 to appeals under the Act. |
| Narcotics Control Bureau v. Kishan Lal & Ors. (AIR 1991 S.C. 558) | Held that limitations placed by section 37 of the NDPS Act on power to grant bail are applicable to the High Court when exercising powers under section 439 of the Code. | The court noted this decision and drew a distinction: while Kishan Lal applied section 37 to High Court powers under section 439, those powers differ from the suspension/release power under section 389; nevertheless, the court held section 37 and the Act's preamble are proper guidelines to consider when exercising discretion under section 389. |
| Ram Charan v. Union of India (1991 Luck. LJ. 108) | Reported decision of a Division Bench of the Allahabad High Court holding that section 32A was hit by Articles 14 and 21. | The opinion records this decision and notes that counsel for appellants mentioned it but did not press the constitutional challenge in the present case. |
| Oliver Fernando, P.T v. Assistant Collector of Madras (1990 Drugs Cases 362) and Kantilal Jain & Ors. v. Assistant Collector (CIU) & Anr. (I(1992) CCR 598 (DB)) — Madras High Court | Held that the High Court has power to grant bail pending appeal against conviction and sentence under the NDPS Act. | The court cited these decisions as supporting authorities that High Courts have the power to grant bail pending appeal under the Act. |
| Phasalu v. State of Kerala (1992 (1) Crimes 295) | Split views at the Kerala High Court on whether bail could be granted; matter referred to a third Judge who said bail could be granted. | The opinion records this split and the ultimate third-judge decision permitting bail as part of the jurisprudential landscape considered by the court. |
| Berlin Joseph @ Ravi v. State (1992 (1) Crimes 1221) — Kerala Full Bench | Full Bench view that the High Court has no power to suspend the sentence of a convicted person under the Act during the pendency of his appeal or revision. | The court expressly noted reliance by State counsel on this authority but disagreed with its view, holding that section 32A does not control section 36B/section 389 powers. |
Court's Reasoning and Analysis
The court's reasoning proceeded along these principal steps, confined to the material in the opinion:
- Statutory starting point: Section 36B of the NDPS Act incorporates, by reference, the powers in Chapters XXIX and XXX of the Code "so far as may be applicable." The court treated this as legislation by reference and applied the established interpretive approach that such provisions are to be followed generally to the extent possible — not incorporated verbatim in all circumstances.
- Identification of applicable Code provision: Chapter XXIX (sections 372–394) governs appeals. The court concluded that not all sections of that Chapter would apply in appeals under the Act, but section 389 (suspension of sentence pending appeal; release on bail) is applicable to appeals brought under section 36B.
- Distinction between types of power: The court distinguished powers exercisable under section 389 from powers under other provisions (notably section 439). Section 389 permits an appellate court (including the High Court under subsection (2)) to suspend execution of the sentence appealed against and release the appellant on bail pending appeal, with reasons recorded in writing.
- Role of section 32A: Section 32A of the Act (no suspension, remission or commutation in any sentence awarded under the Act) was interpreted as addressing powers of the State and Central Governments to suspend, remit or commute sentences — i.e., it relates to Chapter XXXII-E of the Code (provisions concerning suspension, remission and commutation). The court held section 32A places limits on executive powers in that domain but does not control or curtail the High Court's power under section 389 to suspend the order appealed against and release a convicted appellant on bail.
- Interaction with section 37: Section 37 of the Act makes offences cognizable and, for offences punishable with five years or more, places additional limitations on grant of bail (including requirement of opportunity to Public Prosecutor and satisfaction of court as to guilt/likelihood of reoffending). The court acknowledged the Supreme Court's decision in Kishan Lal that section 37's limitations apply to the High Court when acting under section 439. However, the court emphasized that section 389 and section 439 involve different powers; accordingly, section 37 does not per se forbid the High Court from releasing a convicted person on bail when suspending execution under section 389.
- Proper exercise of discretion: Although the High Court has the power to suspend the order and release a convicted appellant on bail pending appeal, the court must record reasons in writing (as required by section 389) and take into account the preamble of the Act and the provisions of section 37 as guiding considerations while exercising its discretion. The court described this as sound judicial practice and cautioned that the dominant purpose of the Act must be borne in mind.
- Treatment of contrary authorities: The court reviewed conflicting High Court decisions (Madras, Kerala, Allahabad) and noted that while some decisions denied High Court power and others allowed it, the court was unable to accept the view that section 32A nullifies section 36B/section 389 powers. It expressly disagreed with the Full Bench decision in Berlin Joseph to the extent that it concluded the High Court lacked power to suspend sentence and grant bail pending appeal.
Holding and Implications
Holding: The court overruled the objection raised by the State and held that, pending any appeal by a convicted person under the NDPS Act, the High Court has power to suspend the order appealed against and, if the convicted person is in confinement, to release him on bail (by exercising the powers of section 389 of the Code as incorporated by section 36B of the Act).
Implications:
- The direct effect is that the High Court retains jurisdiction to consider suspension of execution of sentence and release on bail under section 389 when an appeal is filed under section 36B of the Act; section 32A does not oust that jurisdiction.
- The High Court must record its reasons in writing for any suspension/release (as required by section 389) and should take into account the Act's preamble and the limitations and policies embodied in section 37 as guiding considerations in the exercise of its discretion.
- The opinion notes conflicting High Court authorities on the question and expressly disagrees with the Kerala Full Bench decision that denied High Court power in this regard; the court did not accept that section 32A is a proviso to or controlling on section 36B.
- The opinion does not state that a new constitutional precedent was declared; it resolves the preliminary objection in these applications in favor of the appellants by interpreting the statutory scheme and applicable Code provision.
This summary is based exclusively on the content of the provided opinion. No facts, arguments or authorities beyond those contained in the opinion have been added or inferred.
D.P WADHWA, J.:— In these two applications filed separately by the two appellants we have been called upon to decide as a preliminary issue if the High Court has jurisdiction to admit the appellants to bail on their conviction for offences under the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘the Act’).
2. For the purpose of decision of this preliminary objection raised by the State it is not necessary for us to go into the facts of the case except to note that both the appellants were convicted of an offence under section 20 of the Act, one appellant being sentenced to undergo rigorous imprisonment for a period of 20 years and to pay fine of Rs. 2 lakhs and in default thereof to undergo simple imprisonment for a period of 2 years, the second appellant sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- and in default thereof to undergo one year simple imprisonment”. The State has contended that in view of section 32A of the Act this Court has no jurisdiction to grant bail to the appellants.
This section is as under:—
“32-A. No suspension, remission or commutation in any setence awarded under this Act-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or 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 committed.”
3. Reference has also been made to section 37 of the Act which makes offences under the Act to be cognizable and non-bailable.
This section is as under:—
“(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -
(a) every offence punishable under this Act shall be congnizable;
(b) h 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 that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting bail specified in clause (b) of sub-section (1) are in addition to the limitations 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 appellants, however, contend to the contrary and they in support of their case rely on section 36B of the Act which is as under:—
“36-B. Appeal and revision - The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.”
5. Chapter XXIX of the Code of Criminal Procedure, 1973 (for short ‘the Code’) deals with Appeals and Chapter XXX of the Code with Reference and Revision. Chapter XXXII-E of the Code starts with the heading - Suspension, remission and commutation of sentences. While section 432 falling under this Chapter deals with power of the State Government to suspend or remit sentences, section 433 deals with the power of the State Government to commute a sentence. In the case of sentences of death Central Government can also exercise powers conferred upon the State Government under sections 432 and 433 of the Code. This is section 434. Section 435 provides for the State Government to act after consultation with the Central Government in certain cases. That are all the sections under Chapter XXXII-E of the Code.
6. Considerable arguments were addressed by both the sides in support of their cases. We, however, do not think that the matter is of such a complicated nature.
7. For our purpose we need refer only to Chapter XXIX of the Code dealing with the appeals. This Chapter contains sections 372 to 394. We need not set out all these sections, but after examining the same it can safely be said that all the sections under this Chapter would not apply when appeal is filed under the provisions of the Act after conviction and sentence of the accused. section 389 of the code falling under this Chapter which deals with (as the heading shows) Suspension and sentence pending the appeal; release of appellant on bail, would certainly be applicable to appeal under section 36B of the Act. Sub-sections (1) and (2) of section 389 of the code which are relevant may be reproduced:—
“(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 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.
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8. Section 36B of the Act incorporates the provisions of Chapters XXIX and XXX of the Code “so far as may be applicable”. This is legislation by reference. It is not that whole of the provisions of Chapters XXIX and XXX have been incorporated in the Act by pen and ink. In Dr. Partap Singh and another v. Director of Enforcement, Foreign Exchange Regulation Act and others,(AIR 1985 S.C 989), with reference to the expression “so far as may be” the Supreme Court said that the expression had always been construed to mean that those provisions may be generally followed to the extent possible and it was not that those provisions had been incorporated by pen and ink. In the case before the Supreme Court the provisions of section 37(2) of the Foreign Exchange Regulation Act, 1973, which provided for searches, had used the expression “the provisions of the Code relating to searches, shall, so far as may be, apply to searches directed under section 37(1) of the Act. Section 165 of the Code provides for searches by a police officer. The court said that reading the two sections together it merely meant that the methodology prescribed for carrying out the search provided in section 165 had to be generally followed, and that the expression “as far may be” had always been construed to mean that those provisions might be generally followed to the extent posssible. In Babubhai Muljibhai Patel v. Nandlal Khodidas Barto and others (AIR 1974 S.C 2105) the court said that the words “as far as it can be made applicable” in section 141 of the Code of Civil Procedure made it clear that in applying the various provisions of that Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. section 141 of the Code of Civil Procedure lays down that “the procedure provided in this Code in regard to all suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction.” The words “as far as can be made applicable” and “so far as may be” have the same meaning as the words “so far as may be applicable” as appearing in section 36B of the Act. We see no reason why provisions of section 389 as appearing in Chapter XXIX of the Code of Criminal Procedure could not be applicable in an appeal filed under section 36B of the Act.
9. While section 389 of the code read with section 36B of the Act talks of suspension of the order appealed against and, thus, to release the appellant on bail if in confinement, section 32A of the Act talks of suspension, remission and commutation of the sentences. To our mind, section 32A of the Act has reference to Chapter XXXII-E of the Code which, as noted above, refers to suspension, remission and commutation of sentences. Section 32A of the Act put shackles on the powers of the State and Central Governments to suspend, remit or commute the sentences. This section does not control the powers of the High Court to suspend the order appealed against and to release the appellant on bail if he is in confinement.
10. We do not think that provisions of section 37 of the Code forbid the High Court from releasing a convict under the Act on his filing an appeal in terms of section 389 of the Code. Section 37 was subject-matter of interpretation by the Supreme Court in Narcotics Control Bureau v. Kishan Lal and others (AIR 1991 S.C 558). Here the court said that limitations placed by section 37 on the power to grant bail were applicable to the High Court as well while exercising power under section 439 of the code. section 439 of the code empowers the High Court to grant bail to an accused person, but that section is applicable when an accused is arrested or is undergoing trial for a non-bailable offence, or even when his appeal against conviction is pending in the court of session. Powers to exercise under section 439 of the code by the High Court are different than the powers exercisable under section 389 of the code. Here it is suspension of the order appealed against and consequent release of the convict on bail.
11. We are, therefore, of the opinion that the High Court has power to release a convicted person under the Act on bail pending hearing of his appeal before it. But then we must sound a word of caution. Section 389 requires in that case the reasons to be recorded in writing and the High Court will certainly take into consideration the preamble of the Act and provisions of section 37 of the Act while exercising powers to release a convict on bail pending his appeal. These will serve as proper guidelines while exercising discretion in releasing the convict on appeal. The Supreme Court has said in Kishan Lal's case (supra) the dominant purpose underlying the Act had to be borne in mind and it will be a sound judicial discretion to take into consideration she provisions of section 37 of the Act as well while exercising discretion in releasing the convict on bail pending his appeal. Because of the view which we have taken it is hardly necessary for us to analyse various judgments which were referred to us during the course of arguments by both the parties.
12. Mr. Naseem appearing for the appellants referred to a decision of the Lucknow Bench of the Allahabad High Court in Ram Charan v. Union of India, 1991 Luck. LJ. 108, where a Division Bench held that the provisions of section 32a were hit by Articles 14 and 21 of the Constitution and, thus, unconstitutional. Mr. Naseem, however, said he was not advancing any such plea in the present case.
13. Two different Benches of the Madras High Court in Oliver Fernando, P.T v. Assistant Collector of Madras (1990 Drugs Cases 362), and Kantilal Jain and others v. Assistant Collector (CIU) & Anr. [I(1992) CCR 598 (DB)] have held that High Court has power to grant bail pending appeal against conviction and sentence under the Act.
14. In Kerala High Court in Phasalu v. State of Kerala [1992 (1) Crimes 295] two Judges differed in their views while one Judge saying that bail could not be granted, the other taking the view that it could be so granted, the matter was referred to third Judge who said that bail could be granted.
15. Mr. Handa strongly relied on a later Full Bench decision of the Kerala High Court in Berlin Joseph @ Ravi v. State [1992 (1) Crimes 1221] where the Full Bench has taken the view that High Court has no power to suspend the sentence of a convicted person under the Act during the pendency of his appeal or revision. With respect we are unable to agree to this view. Section 32A of the Act is neither a proviso to section 36B of the Act nor it controls it.
16. We will, thus, overrule the objection raised by the State and hold that pending any appeal by a convicted person under the Act, the High Court has power that order appealed against be suspended and, also, if the convicted person is in confinement, that he be released on bail.
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