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Phasalu v. State Of Kerala

Kerala High Court

Jul 15, 1991

Judgment

CaseIQ

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Factual and Procedural Background

The opinion considers whether an accused convicted and sentenced under the Narcotic Drugs and Psychotropic Substances Act, 1985 (the "N.D.P.S. Act"), other than under S. 27, is entitled to suspension of sentence pending appeal. Petitioners contended that under S. 389 of the Code of Criminal Procedure (Cr.P.C.) the appellate court has power to suspend execution of sentence during the pendency of an appeal notwithstanding S. 32-A of the N.D.P.S. Act. The Public Prosecutor contended that S. 32-A removes the appellate court's power to suspend sentence. Two judges delivered separate opinions. M.M. Pareed Pillay, J. held that S. 32-A applies to the appellate court and dismissed the petitions. Balakrishnan, J. reached the opposite conclusion, held that the High Court may exercise its power under S. 389 Cr.P.C. to suspend sentence in such cases (to be used sparingly), and allowed the criminal miscellaneous petitions, directing suspension of sentence and release on bond with sureties.

Legal Issues Presented

Whether an accused convicted and sentenced under the N.D.P.S. Act (other than under S. 27) is entitled to suspension of sentence pending appeal.
Whether S. 37 of the N.D.P.S. Act limits or curtails the High Court's power to suspend sentence under S. 389 of the Cr.P.C.
Whether S. 32-A of the N.D.P.S. Act prohibits the appellate court (including the High Court exercising powers under S. 389 Cr.P.C.) from suspending, remitting or commuting sentences awarded under the Act.
How S. 36-B of the N.D.P.S. Act (which makes certain Chapters of the Cr.P.C. applicable) interacts with S. 32-A and the High Court's power under S. 389 Cr.P.C.

Arguments of the Parties

Petitioners' Arguments

Under S. 389 Cr.P.C., the appellate court has wide powers to suspend sentence pending appeal, and this power can be exercised notwithstanding S. 32-A of the N.D.P.S. Act.
S. 37 of the N.D.P.S. Act does not apply to a person who has already been convicted and who files an appeal seeking suspension of sentence; S. 37 deals with bail during trial and its restrictions are not intended to control suspension after conviction.
S. 32-A is intended to deal with suspension, remission or commutation by the Government (under Ss. 432 and 433 Cr.P.C.), and therefore does not fetter the appellate court's power to suspend sentence pending appeal.

Public Prosecutor's Arguments

In view of S. 32-A of the N.D.P.S. Act, the appellate court has no power to suspend a sentence during the pendency of an appeal; S. 32-A displaces any inconsistent provision in the Cr.P.C. and bars suspension, remission or commutation of sentences awarded under the Act (other than S. 27).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Narcotics Control Bureau v. Kishan Lal (1991 (1) K.L.T. 547)	Held that powers to grant bail under S. 439 Cr.P.C. are subject to limitations in amended S. 37 of the N.D.P.S. Act; the N.D.P.S. Act, as a special enactment with a non-obstante clause, prevails over general enactments on bail.	Both judges cited this authority to explain the relationship between S. 37 and the Cr.P.C.: to emphasize that S. 37 governs bail at trial and that the special enactment principle applies. The opinion uses the case to support the view that S. 37 limits general bail provisions but does not directly govern suspension of sentence after conviction.
Vijayawada Municipal Council v. A.P.S.E Board (1976-4-S.C.C. 548)	Principle of statutory construction: a statute must be read as a whole; words and phrases should be given their ordinary meaning unless it leads to absurdity; the construction which fits the object of the statute should be adopted.	Applied by Pareed Pillay, J. to interpret S. 32-A — concluding that S. 32-A's prohibition on suspension of sentence is not confined to the Government and applies equally to the appellate court, because reading the section otherwise would produce an anomalous result inconsistent with the object of the statute.

Court's Reasoning and Analysis

Reasoning of M.M. Pareed Pillay, J.

Pareed Pillay, J. framed the principal question as whether a convicted person (other than under S. 27) under the N.D.P.S. Act is entitled to suspension of sentence pending appeal. He accepted that S. 389 Cr.P.C. empowers an appellate court to suspend execution of sentence pending appeal, and recognized that S. 37 imposes stringent bail conditions at the trial stage and that the Supreme Court in Narcotics Control Bureau v. Kishan Lal held that S. 37 limits the power to grant bail. However, he concluded that S. 37 has no application to the question whether a convicted person can seek suspension of sentence pending appeal.

On S. 32-A of the N.D.P.S. Act, Pareed Pillay, J. held that the section's plain language — which begins with a non-obstante clause and states that, subject to S. 33, "no sentence awarded under the Act (other than S. 27) shall be suspended or remitted or commuted" — cannot be read as confined to exercises of power by the Government alone. He reasoned that the section makes no distinction between suspension by Government and suspension by court; therefore the prohibition extends to the appellate court as well. He relied on the established rules of statutory construction (citing Vijayawada Municipal Council v. A.P.S.E. Board) that statutes must be read as a whole and words given their ordinary meaning unless that leads to an absurd result. He found that reading S. 32-A to exclude the appellate court would lead to an anomalous situation (e.g., much easier suspension post-conviction than pre-conviction), and thus concluded S. 32-A bars suspension by the appellate court. He observed that, although S. 36-B gives the High Court powers under Chapters XXIX and XXX of the Cr.P.C., S. 32-A makes the position clear that the High Court has no jurisdiction to suspend sentence awarded under the Act except under S. 27. On that basis he dismissed the petitions.

Reasoning of Balakrishnan, J.

Balakrishnan, J. agreed that the question was whether the High Court has power under S. 389 Cr.P.C. to suspend sentence pending appeal when an accused is sentenced under the N.D.P.S. Act for imprisonment of five years or more. He reasoned that S. 37 of the Act addresses cognizability and bail during trial and therefore does not apply to suspension of sentence after conviction; he relied on Narcotics Control Bureau v. Kishan Lal to observe that the N.D.P.S. Act's non-obstante clause gives S. 37 priority over general enactments like the Cr.P.C. on matters of bail during trial, but that conclusion does not govern suspension after trial.

On S. 32-A, Balakrishnan, J. interpreted the provision as intended to abrogate powers of the Central or State Government under Ss. 432 and 433 Cr.P.C. to suspend, remit or commute sentences, rather than to curtail the High Court's power under S. 389 Cr.P.C. He noted that Ss. 432 and 433 confer powers on the appropriate government, whereas Chapter XXIX of the Cr.P.C. (which includes S. 389) contains the appellate court's powers. He emphasized S. 36-B of the N.D.P.S. Act, which makes Chapters XXIX and XXX of the Cr.P.C. applicable so far as may be, and reasoned that S. 36-B saves the High Court's power under S. 389. He contrasted the language of S. 32-A with provisions (such as Rule 184 of the Defence and Internal Security of India Rules, 1971) that expressly curtailed judicial powers — observing that the N.D.P.S. Act contains no similar wording curtailing the High Court's power under S. 389. Consequently, he held that S. 32-A was not intended to take away the High Court's power to suspend sentence temporarily pending appeal.

Balakrishnan, J. qualified his conclusion: the High Court's power to suspend sentence in such cases must be exercised sparingly and only in very exceptional circumstances, given the stringent mandate of the N.D.P.S. Act that accused should not ordinarily be released even at trial. Applying that prudential standard, he allowed the petitions before him and directed suspension of sentence and release on bail on specified bond and surety conditions.

Holding and Implications

Holdings (two judicial conclusions):

M.M. Pareed Pillay, J.: S. 32-A of the N.D.P.S. Act prohibits suspension, remission or commutation of sentences awarded under the Act (other than S. 27) and that prohibition applies equally to the appellate court; accordingly the High Court has no jurisdiction to suspend such sentences in appeal — petitions dismissed.
Balakrishnan, J.: S. 32-A is intended to abrogate the Government's powers under Ss. 432 and 433 Cr.P.C. and does not curtail the High Court's power under S. 389 Cr.P.C. to suspend sentence pending appeal; the High Court may therefore suspend sentence in exceptional cases — petitions allowed and sentences suspended on specified bond and sureties.

Direct Consequences for the Parties:

In the petitions addressed by Balakrishnan, J., the court ordered suspension of the sentences and directed release of the petitioners on executing a bond for Rs. 10,000 with two solvent sureties of like amount to the satisfaction of the court below.
In the portion authored by M.M. Pareed Pillay, J., the petitions were dismissed on the basis that S. 32-A bars suspension by the appellate court.

Broader implications: The opinion contains two conflicting judicial conclusions on the scope of S. 32-A in relation to S. 389 Cr.P.C. The opinion itself does not expressly state that it establishes a broader precedent beyond the immediate decisions; therefore, the direct effect on the parties is set out above and no specific broader precedent is declared within the text.

Show all summary ...

Pareed Pillay, J.:— The short question that arises for consideration is whether an accused who is convicted and sentenced under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the N.D.P.S Act) other than under S. 27 is entitled to suspension of sentence pending appeal.

2. Contention of the petitioners is that under S. 389 of the Code of Criminal procedure this Court has wide powers to suspend the sentence under the N.D.P.S Act during the pendency of the appeal not-withstanding S. 32-A of the Act. S. 389(1) provides that 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 may be released on bail or on his own bond. Counsel pointed out that S. 37 of the N.D.P.S Act has no application to a case where the accused has already been convicted and when he files an appeal and moves for suspension of the sentence. S. 37(1)(b) postulates notice to the Public Prosecutor on any motion for bail. S. 37(1)(b)(ii) provides that after giving notice to the Public Prosecutor bail can be granted if Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that is is not likely to commit any offence while on bail. S. 37 contains a non-obstante clause to the effect that it overrides the provisions for bail under the Cr.P.C In Narcotics Control Bureau v. Kishan Lal (1991 (1) K.L.T 547) the Supreme Court held that the powers to grant bail under S. 439 are subject to the limitations contained in the amended S. 37 of the N.D.P.S Act and restrictions on the powers of the Court under the said Section are applicable to the High Court also in the matter of granting bail. There cannot be any doubt that S. 37 of the N.D.P.S Act is not applicable to casewhere an accused has already been convicted and when he files appeal and seeks suspension of the sentence. The question whether a person convicted and sentenced under the N.D.P.S Act is entitled to get the sentence suspended during the pendency of the appeal cannot be determined having recourse to S. 37. Stand of the Public Prosecutor is that in view of S. 32-A of the N.D.P.S Act the appellate court has no power to suspend the sentence during the pendency of the appeal S. 32-A reads:

“Notwithstanding anything contained in the Code of Criminal Pocedure, 1973 (Act 2 of 1974), or any other law for the time being in force but subject to the provisions of S33, nosentence awarded under the Act (other than S. 27) shall be suspended or remitted or commuted.”

3. S. 33 of the N.D.P.S Act provides that S. 360 of the Cr.P.C or the Probation of Offenders Act, 1958 shall not apply to any person convicted of an offence under the Act unless such personis under eighteen years of ageor that the offence for whiclrsuch person is convicted is punishable under S. 26 or S. 27. S. 26 deals with punishment for certain acts by licensee or his servants. S. 27 is concerned with the punishment for illegal possession in small quantity for personal consumption of any narcotic drug or psychotropic substance or consumption of such drug or substance.

4. Petitioners contend that S. 32-A has no application so far as the appellate Court is concerned as it is obviously intended to meet a situation of suspension, remission or commutation of sentence by the Government as provided under Ss. 432 and 433 of the Cr.P.C S. 432 empowers the appropriate Government to suspend or remit sentence. S. 433 enables the appropriate Government to commute the sentence. In other words, petitioners' stand is that S. 32-A does not fetter the powers of the appellate Court to suspend the sentence pending appeal.

5. From a reading of S. 32-A of the N.D.P.S Act it is not possible to hold that the interdict regarding suspension of the sentence is confined only to the Government and not to the appellate Court. The section does not confine its ambit to the suspension of sentence by the Government. The section does not make any distinction between the suspension of sentence by the appellate Court and the Government. Of course, appellate Court's power of suspension of sentence is limited to a case where the convicted accused has filed appeal. Suspension of sentence bythe appellate Court can only be till the appeal is disposed of whereas suspension of sentence by the Government is not thus limited. Except that difference S. 32-A does not indicate of any difference regarding suspension of sentence by the appellate Court or the Government. The argument that S. 32-A has no application to the power of the appellate Court regarding suspension of sentence cannot be accepted. It is the well settled legal principle that words, phrases and sentences of a statute should ordinarily be understood in their natural, ordinary, popular and grammatical meaning unless it would lead to an absurd result or the object of the statute indicates a totally different meaning. Even if two interpretations are possible, the one which fits in with the object of the statute has to be adopted. As held by the Supreme Court in Vijayawada Municipal Council v. A.P.S.E Board (1976-4-S.C.C 548) the salutary rale of construction rests upon the doctrine that a statute like any other document, must be read as a whole to extract its meaning and intendment correctly. If S32-A is held applicable only to suspension of sentence by the Government, it would lead to a ridiculous and anomalous position. Thus, where a person is accused of an offence under the Act S. 37 makes the provision for the grant of bail very arduous whereas when a person is convicted, be would not face that much difficulty in getting bail. While interpreting a section, it is elementary that it should be considered in the backdrop of the entire statute and a particular section cannot be read in isolation. S. 32-A interdicts suspension of the sentence and as no differentiation is made with regard to that power to be exercised either by the Government or the Court, the argument that the Court is vested with the power to suspend the sentence and the section has no application cannot be sustained.

6. As S. 32-A of the N.D.P.S Act envisages that notwithstanding anything contained in the Criminal Procedure Code or any other laws for the time being in force sentence cannot be suspended and as it applies equally to the appellate Court, there is no merit IN the contention of the petitioners that the appellate Court has unfettered power to suspend the sentence pending appeal. Even though S. 36-B of the Act provides that the High Court has all powers under Chapters XXIX and XXX of the Cr.P.C, S. 32-A of the N.D.P.S Act makes the position manifestly clear that the High Court has no jurisdiction to suspend the sentence.

7. It therefore follows that the High Court is not clothed with the power under N.D.P.S Act to suspend sentence awarded under the Act except under S. 27. In the result, the petitions are dismissed.

Balakrishnan, J.

8. I had the advantage of reading the draft order of my noble and learned brother M.M Pareed Pillay, J. and as I do not agree on certain issues, add this separate order.

9. The question in controversy is whether High Court has power under S. 389 Cr.P.C to suspend sentence pending appeal in case where the accused is found guilty of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentenced for a term of imprisonment of 5 years or more.

10. One contention raised is whether S. 37 of the Act curtails the power of the High Court in suspending the sentence. I do not think that S. 37 of the Act has any application. S. 37 of the Act reads:

“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 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 of bail specified in clause (b) of Sub-s. (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.”

(emphasis supplied)

11. S. 37 deals with the power of the court in granting bail during the pendency of trial. It has been held in Narcotics Control Bureau v. Kishan Lal (1991 (1) K.L.T 547), reference to which has been made by my learned brother, that the N.D.P.S Act being a special enactment, the provisions therein should prevail over the general enactments and the non obstante clause must be given its due importance, and on this basis it was held that the power of the High Court to grant bail under S. 439 Cr. P.C is subject to the limitations contained in the amended S. 37 of the Act. While suspending the sentence and granting bail S. 439 of the Code as such does not come into play. So also, S. 37 of the Act has no application, as the question of suspension arises after the trial stage is over.

12. No provision has been made in the Act just as in Rule 184 of the Defence and Internal Security of India Rules, 1971, curtailing the powers of the High Court under S. 3S9 of the Cr.P.C Rule 184 of the Defence and Internal Security of India Rules, 1971 reads:

“Rule 184. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898) no person accused or convicted of a contravention of these Rules or orders made thereunder shall, if in custody, be released on bail or his own bond unless

(a) the prosecution has been given an opportunity to oppose the application for such release, and

(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made thereunder as the Central Government or the State Government may by notified order specify in this..behalf, the Court is satisfied and there are reasonable grounds for believing that he is not guilty of such contravention.”

(emphasis supplied)

13. S. 37 of the Act is not worded like that. The above provision clearly refers to accused as well as convicted person. Therefore, I am of the view that the High Court can suspend the sentence in a case where the accused is convicted by the Sessions Court or by a Special Court, for an offence punilnable under the Act, even if the sentence of imprisomentent is more than 5 years. This does not mean-that the High Court should invariably suspend the sentence and grant bail in all cases. The power of the court has to be used sparingly and under exceptional circumstances. The mandate of the enactment is that the accused should not be released even at the stage of trial. Therefore, in a case where the accused is found guilty of the offence under the Act the High Court should view the matter strictly and the sentence is to be suspended only under very exceptional circumstances.

14. Another contention urged by the learned Public Prosecutor is that S. 32-A of the Act completely takes away the right of the High Court to suspend the sentence. S. 32-A reads:,

“32-A. 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 S. 33, no sentence awarded under this Act (other than S. 27) shall be suspended or remitted or communed.”

15. S. 32-A also is not intended to curtail the powers of the High Court under'S. 389 of the Code. S. 32-A is to abrogate the powers of the Central or State Government vested in them under Ss. 432 and 433 of the Code of Criminal Procedure, 1973. That is evident from the words used in S. 32-A of the Act Under Ss. 432 and 433 of the Code powers are conferred on the appropriate governments to suspend or remit sentences. Similar powers are not conferred on the High Court Under S. 386 of the Code the power of the appellate court in an appeal from conviction include only reversing the finding and sentence, acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such appellate court or alter the finding and maintaining the sentence or without altering the rinding alter the nature and extent of the sentence, but not to enhance the same. There is no power of suspension, remission or commutation as such conferred on the High Court, except to suspend the sentence temporarily pending appeal as postulated under S. 389 of the Code.

16. Another relevant clause apposite at this juncture is S. 36-B of the Act, which reads:

“36-B. Appeal and revision-The High Court may exercise, so far as may be applicable, all the powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court 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.”

17. The above provision would indicate that the High Court has got all the powers conferred on it under Chapter XXIX of the Code while dealing with an appeal preferred against conviction and sentence passed under the N.D.P.S Act. The power under S. 389 of the Code is one such power conferred under Chapter XXIX of the Code. So, even though the provisions of the Act should prevail over the general enactments like Cr.P.C, the power of the High Court under S. 389 is saved by S. 36-B of the Act. For the reasons stated above, the criminal miscellaneous petitions are allowed and the sentences against the petitioners are suspended and they are directed to be released on executing a bond for Rs. 10,000/- (Rupees ten thousand only) with two solvent sureties each for the like amount to the satisfaction of the Court below.

18. Allowed.