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Case Number

CRA No. 215 of 1997

Attorney(S)

Sudipta Moitra
Debasis Basu
Sukumar Ghosh
U.A.Dewan

Judges

Gitesh Ranjan Bhattacharjee, J.

Acts

section 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958.Nothing contained in section 360 of the Code of Criminal Procedure 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958)
section 33 of the NDPS Act section 360 Cr. P.C or the Probation of Offenders Act
section 21 of the Narcotic Druge and Psychotropic Substances Act, 1985.
section 432 or section 433 of the Code of Criminal Procedure
section 389 of the Cr. P.C. Therefore section 32A, NDPs Act
section 360 Cr. P.C or the Probation of Offender's Act
respect.2. Section 32A and section 33 of the NDPS Act
Code of Criminal Procedure, section 389 Cr. P.C
section 26 or section 27 of the NDPS Act
section 389 Cr. P.C Section 36B NDPS Act
section 26 or section 27.3. Section 32A
provisions of section 37 NDPS Act
section 360(4) Cr. P.C
section 389(1) Cr. P.C
section 386(6) Cr. P.C
section 389(3) Cr. P.C
section 389 Cr. P.C

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Smart Summary

Summary of the Opinion

Factual and Procedural Background

The appellant sought bail pending disposal of her appeal against conviction and sentence by the trial court. By order dated 26.2.97 the trial court convicted the appellant under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced her to rigorous imprisonment for ten years and a fine of Rs. 1,00,000/-, in default to undergo rigorous imprisonment for two years more. The appellate application before the court was for suspension of that sentence and release on bail pending the appeal. The Additional Public Prosecutor argued that section 32A of the NDPS Act prevents suspension of the sentence and therefore bail cannot be granted; the appellant's advocate opposed that proposition.

Legal Issues Presented

Whether section 32A of the NDPS Act bars suspension, remission or commutation of sentences awarded under the Act (other than under section 27), and therefore prevents an appellate court from suspending execution of sentence and releasing a convict on bail under section 389 Cr.P.C. during the pendency of an appeal.
Whether the exception in section 33 of the NDPS Act permits courts to suspend sentences (or apply provisions like section 360 Cr.P.C. or the Probation of Offenders Act) in cases under sections 26 or 27 of the NDPS Act or where the convict is under eighteen years of age, and the scope of that exception.
Whether the embargo of section 32A is limited to executive powers (for example, under sections 432 or 433 Cr.P.C.) or extends equally to judicial powers exercised by trial and appellate courts (for example, under sections 389(1) and 389(3) Cr.P.C.).

Arguments of the Parties

Additional Public Prosecutor / State

Submitted that section 32A of the NDPS Act, by its non-obstante clause, prevents suspension, remission or commutation of any sentence awarded under the Act (other than section 27), and thus the sentence imposed on the appellant cannot be suspended and she cannot be enlarged on bail during the pendency of the appeal.
Relied on authorities (including Mohd. Ismail v. State) supporting the view that courts cannot override section 32A by granting bail under Cr.P.C. provisions.

Appellant (learned Advocate for the appellant)

Contended that the embargo in section 32A is limited to powers exercisable by the Government (for example under sections 432 or 433 Cr.P.C.) and does not apply to the judicial power of courts to suspend sentence and grant bail under provisions such as section 389 Cr.P.C.
Relied upon High Court decisions (Jyotiben v. State and Hori Lal v. State) that took a different view from the court in the present opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jyotiben v. State 1997 Cr. L.J 1958	Relied upon by appellant's counsel for the proposition that courts may grant bail/suspend sentence in NDPS cases (the Gujarat High Court assumed the trial court could enlarge on bail under section 389(3) Cr.P.C. in cases under section 26 NDPS Act).	The court rejected the view expressed in this decision and explained that the assumption in paragraph 16 of Jyotiben (about trial court power under section 389(3) Cr.P.C.) is incorrect because section 32A's non-obstante clause precludes such recourse except to the limited extent saved by section 33.
Hori Lal v. State 1997 Cr. L.J 821	Cited by appellant's counsel to support the contention that courts can suspend sentence/grant bail despite section 32A.	The court declined to follow the decision and did not accept the view relied upon from this case.
Mohd. Ismail v. State 1998 Cr. L.J 136	Cited by the Additional Public Prosecutor in support of the proposition that section 32A bars suspension of sentence by courts and that appellate courts cannot grant bail pending appeal in NDPS cases covered by section 32A.	The court aligned its view with this decision and found it persuasive.

Court's Reasoning and Analysis

The court analysed the statutory scheme of the NDPS Act, focusing on section 32A and its relationship with section 33 of the NDPS Act and relevant provisions of the Code of Criminal Procedure (Cr.P.C.). The steps of analysis in the opinion are:

Textual interpretation of section 32A: Section 32A expressly provides that "notwithstanding anything contained in the Code of Criminal Procedure, 1973 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 commuted." The court concluded that the non-obstante clause gives the embargo a broad, overriding effect over Cr.P.C. provisions.
Role of section 33 as a limited exception: Section 33 preserves application of section 360 Cr.P.C. and the Probation of Offenders Act only in respect of convicts under eighteen years of age or where the offence is punishable under section 26 or section 27 of the NDPS Act. The court held that this is a limited carve-out expressly saved within section 32A.
Application to judicial powers (vs. executive powers): The court rejected the contention that section 32A applies only to executive powers (such as sections 432/433 Cr.P.C.) and not to courts. The language of section 32A is general and not limited to governmental action; by making section 32A "subject to" section 33, the legislature created one narrow exception in favour of courts in specified circumstances, indicating otherwise courts have no power to suspend a sentence in contravention of section 32A.
Interaction with section 389 Cr.P.C.: Ordinarily section 389(1) Cr.P.C. permits an appellate court to suspend the execution of sentence and release a convicted person on bail pending appeal. However, because section 32A operates "notwithstanding anything contained in the Code of Criminal Procedure," it overrides section 389(1) Cr.P.C. for offences covered by section 32A. Consequently, the appellate court cannot grant bail by suspending sentence under section 389(1) in such cases.
Other statutory provisions considered: Section 36B of the NDPS Act (empowering High Courts to exercise certain powers) is limited by its words "so far as may be applicable" and does not override the specific bar in section 32A. Section 386(6) Cr.P.C. allows an appellate court to alter findings or sentence on appeal, but that power does not extend to suspending a sentence during pendency of appeal where section 32A applies.
Specific consideration of section 389(3) Cr.P.C. and section 26 NDPS Act: The court noted that although section 389(3) Cr.P.C. generally permits trial courts to grant bail after conviction where the sentence does not exceed three years, that general provision yields to section 32A. The limited power saved by section 33 is to apply section 360 Cr.P.C. or the Probation Act, not the general suspension powers under section 389(3).
Practical conclusion on the present application: Because of the bar in section 32A, the appellate court cannot suspend the sentence and grant bail pending disposal of the appeal. Additionally, the court observed that even absent section 32A the strictness of section 37 NDPS Act and the prima facie evidence leading to conviction would render bail inappropriate in this particular case.

Holding and Implications

Holding: Prayer for bail rejected. The court held that section 32A of the NDPS Act bars suspension, remission or commutation of sentences awarded under the Act (other than under section 27), and accordingly an appellate court cannot suspend the sentence and enlarge the convict on bail under section 389 Cr.P.C. during the pendency of the appeal in cases covered by section 32A. The court also held that the limited exceptions in section 33 are confined to application of section 360 Cr.P.C. or the Probation of Offenders Act in specified circumstances.

Implications:

Direct effect on the parties: The appellant's application for bail pending appeal was refused; the sentence imposed by the trial court remains unsuspended during the pendency of the appeal.
Broader legal consequence stated by the court: Courts must give effect to the clear wording of section 32A (including its non-obstante clause) and may not resort to other Cr.P.C. provisions (such as section 389) to suspend sentences that section 32A forbids, except to the limited extent preserved by section 33. The court indicated that any change to this statutory scheme should be made by the legislature.
Administrative direction: The court directed the Additional Registrar-II to ensure the appeal is made ready for hearing within four months and placed before the appropriate Bench.

Order: Prayer for bail rejected. (Sujit Barman Roy, J. agreed.)

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Smt. Bhola Debi Saroj Bhulia v. State

Gitesh Ranjan Bhattachrjee, J.:—The appellant prays for bail pending disposal of the appeal preferred by her against the conviction and sentence awarded by the trial court. The trial court has by its order dt. 26.2.97, sentenced the appellant to rigorous improsonment for ten years and also to a fine to Rs. 1,00,000/- in default to R. I for two years more for her conviction under section 21 of the Narcotic Druge and Psychotropic Substances Act, 1985. The learned Additional Public Prosecutor however submits inter alia that in view of section 32A of the NDPS Act the sentence imposed upon the appellant can not be suspended and therefore she cannot be enlarged on bail now. This proposition is however opposed by the learned Advocate for the appellant. Let us now examine the legal position in this respect.

2. Section 32A and section 33 of the NDPS Act are set out below:—

“32A. 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) 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 commuted.”

“33. Application of section 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958.

Nothing contained in section 360 of the Code of Criminal Procedure 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958) shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under section 26 or section 27.”

3. Section 32A thus in clear terms imposes an embargo that no sentence awarded under the NDPS Act (other then section 27) shall be suspended, remitted or commuted. And this is so notwithstanding anything contained in the Code of Criminal Procedure which means that this embargo will prevail by orverriding the provisions of Cr. P.C Section 32A however has been made, in express term, ‘subject to’ section 33. In view of section 33 of the NDPS Act section 360 Cr. P.C or the Probation of Offenders Act may however apply in a case only under section 26 or section 27 of the NDPS Act or where the convict under the said Act is under eighteen years of age. This means that in view of section 33 of the NDPS Act in certain circumstances sentence may be kept suspended by deferring the same inspite of conviction under the said Act and inspite of section 32A thereof. As a result, as court of appeal or revision may, in an appropriate case, by exercising power under section 360(4) Cr. P.C uphold the conviction and sentence awarded by the trial court and yet suspend and defer the sentence for a future eventuality and release the convict on bond of good behaviour with or without sureties. This is rather an exception the embargo of section 32A and this exception has been incorporated in section 32A itself and apart from that there is no other exception. Therefore during the pendency of the appeal the convict cannot be enlarged on bail thereby suspending the sentence of imprisonment awarded by the trial court. It is sought to be contended on behalf of the appellant that the embargo of section 32A of the NDPS Act on the exercise of power to suspend, remit or commute a sentence is limited only to the power which the Government could exercise in this respect under section 432 or section 433 of the Code of Criminal Procedure and this embargo has no application to the exercise of power by the court. This contention is however not acceptable because the language of section 32A, NDPS Act is general in its purport and import without restricting scope of the embargo to the exercise of power by the Government alone. Rather by making section 32A ‘subject to’ section 33 the legislature has carved out a limited exception in favour of court in certain circumstances thereby clearly indicating that apart from section 33 the court also has no power to suspend the sentence by ignoring section 32A.

4. But for section 32A NDPS Act an appellate court would indeed have the power to suspend the sentence and release the appellant on bail during the pendency of the appeal, under section 389(1) Cr. P.C which runs thus:—

“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 be susdended and, also, if he is in confinement, that he be released on bail, or on his own bond.”

Evidently however the appellate court's power under section 389(1) Cr. P.C to release the appellant on bail by suspending the sentence of imprisonment pending the disposal of the appeal comes within the mischief of the embargo of section 32A, NDPS Act, such power not being saved by the text of the said section 32A. On the contrary section 32A NDPS Act puts the embargo ‘notwithstanding anything contained in the Code of Criminal Procedure, 1973’ which also means ‘notwithstanding section 389 of the Cr. P.C’. Therefore section 32A, NDPs Act has an overriding and superseding effect on section 389 Cr. P.C as a result of which the appellate court cannot grant bail to a convict-appellant during the pendency of the appeal by exercising the power under section 389 Cr. P.C Section 36B NDPS Act empowers the High Court to exercise ‘so far as may be applicable’ all the powers conferred on a High Court by Chapters XXK and XXX Cr. P.C as if a special court (exercising jurisdiction under the NDPS Act) were a court of session. Thus section 36B far from having any overriding effect on section 32A has been expressly restricted in its operation by the words ‘so far as may be applicable’. As we have seen, in view of the broad sweep of section 32A NDPS Act and its non-obstante clause ‘notwithstanding anything contained in the Code of Criminal Procedure’, section 389 Cr. P.C is not available in case covered by section 32A, NDPS Act. An appellate court on hearing the appeal may, under section 386(6) Cr. P.C reverse the finding and sentence or alter the nature and extent of the sentence, but in view of the bar of section 32A NDPS Act it cannot suspend the sentence and enlarge the appellant on bail pending disposal of the appeal. The appellant therefore cannot be granted bail now.

5. For reasons we have elaborately discussed in this judgment we are unable to persuade ourselves to accept the view of the Gujarat High Court in Jyotiben v. State 1997 Cr. L.J 1958 and Delhi High Court in Hori Lal v. State, 1997 Cr. L.J 821 relied upon by the learned Advocate for the appellants. Our view rather accords with the view of the Bombay High Court in Mohd. Ismail v. State 1998 Cr. L.J 136 cited by the learned Addl. Public Prosecutor. It is only to be pointed out that the Gujarat High Court in parabgraph 16 of its decision in Jyotiben v. State 1997 Cr. LJ 1958, it seems, assumed that the special court convicting and sentencing a person under section 26 NDPS Act has the power or discretion to enlarge him on bail under section 389(3) Cr. P.C for giving him sufficient opportunity to prefer appeal. In our considered opinion such assumption is not correct. No doubt, section 26 NDPS Act prescribes a maximum sentence of three years. No doubt, section 389(3) Cr. P.C makes a general provision empowering the trial court to grant bail after conviction where such person being on bail has been sentenced to imprisonment for a term not exceeding three years. But this general provision of the Cr P.C has to give in to section 32A NDPS Act not only because NDPS Act is a special enactment but also because section 32A NDPS Act itself starts with the non-obstante clause ‘notwithstanding anything contained in the Code of Criminal Procedure’. Therefore even in case of a conviction under section 26 NDPS Act and awarding of sentence thereunder the trial court cannot take recourse to section 389(3) Cr. P.C for granting bail to the convict thereby suspending the sentence in contravention of section 32A NDPS Act. No doubt the said section 32A saves the power available under section 33 in respect of a conviction under section 26 NDPS Act. But the power that is saved under section 33 read with section 32A is the limited power under section 360 Cr. P.C or the Probation of Offender's Act and not any other power under Cr. P.C like the power under section 389(3) Cr. P.C We therefore reiterate and hold that the High Court as an appellate court cannot grant bail to a convict ignoring section 32A NDPS Act. This, in our opinion, is the outcome of a dispassionate interpretation of the relevant provisions of law and we have to accept it whether we like it or not, rather than resorting to a distortive interpretation to avoid a law that may not be liked by us, the Judges in a particular case. For better or worse, leaving it to the wisdom of the legislature to amend it if necessary, law should be allowed by the court to remain the law unless it is found to be ultra vires, and in the present case the vires is not under challenge.

6. But even if section 32A NDPS Act had not been there in the statute-Book, yet it would not be a fit case to enlarge the appellant on bail now in view of the stringent provisions of section 37 NDPS Act and the prima facie evidence leading to the conviction of the appellant under section 21 NDPS Act whatever may be the outcome of the appeal on merits after threadbare consideration which remains reserved to be done at the time of hearing the appeal. Accordingly the prayer for bail is rejected. We however direct the Additional Registrar-II to ensure that the appeal is made ready for hearing within four months and placed for hearing before the appropriate Bench.

Sujit Barman Roy, J.:—I agree.

Prayer for bail rejected.

J.N.H

Smt. Bhola Debi Saroj Bhulia v. State

Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Additional Public Prosecutor / State

Appellant (learned Advocate for the appellant)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Smt. Bhola Debi Saroj Bhulia v. State

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