Sivasubramaniam, J. A batch of Criminal Miscellaneous Petitions Filed for granting bail to the various accused persons were originally heard by BHASKARAN, J. The petitioners were charged under various provisions of the Narcotic Drugs and Page: HC218Psychotropic substances Act, 1985 (herein after referred to as “the Act”). Some of the petitioners sought for bail and others for suspension of sentence imposed by the trial court pending disposal of the appeals filed by them.
2. Central Government Public Prosecutor raised a preliminary point that after the introduction of the amendment to the Act by 2 of 1989, the power of High Court is restricted in granting bail and as per Section 37 of the Act, the power of the High Court is restricted to the extent provided by its sub section. He also submitted that the restriction imposed under the amended Act will also apply to the persons convicted pending their appeal against conviction in view of the bar contained in S.32-A of the Act. On the other hand it was contended by the learned counsel for the petitioners that the powers of the High Court is absolute under S.439 of the Code of the Criminal Procedure (herein after referred to as “the Code”) and it is not curtailed by the provisions of the Act. The preliminary objection was upheld by BHASKARAN, J.
3. Bhaskaran, J. held that the power of the High Court under S.439 of the Code, to grant bail is not taken away but the power has to be exercised with the limitation prescribed under S.37 of the Act which is applicable not only to the Sessions Court, but also to High Court, of course, subject to the prosecution making out a prima facie case. As regards the scope of S.32-A of the Act learned judge held that, it implies that this section takes away not only the power of the appropriate Government under S.432 and 433 of the code but also the power of the appellate Court namely High Court to suspend the sentence pending the appeal under S.389 of the Code. Further he held that apart from the fact that S.37 of the Act is applicable to convicted persons also, in view of S.32-A of the Act, it has to be held that the convicted person is not entitled to bail.
4. Similar question arose before S.T.RAMALINGAM, J. in Criminal Miscellaneous Petition No.8918 of 1989 wherein the said decision of BHASKARAN, J. was brought to his notice. Learned judge after elaborate discussion found it difficult to agree with the view expressed by BHASKARAN, J. and he came to a conclusion that provision contained in S.37 of the Act is for the guidance of the Special Court or the court of Sessions which discharges the duty of a special court as provided under S.36-D of the Act, that sub clause 2 of S.37 of the Act is not a limitation on the powers of the High Court, as conferred under sub-clause 3 of S.36-A of the Act. According to the learned Judge while exercising the power under sub clause 3 of S.36-A of the Act read with S.439 of the Code, the High Court has to take into consideration whether the trial court, while granting or refusing bail has taken into consideration the matters stated in S.37(2) of the Act. On that ground, it cannot be said that S.37(2) of the Act is a limitation of the powers of the High Court in the matter of granting bail. As regards the provisions contained in S.32-A, learned Judge held that the intention of the Legislature in introducing S.32-A of the Act is to take away the power of the Government to suspend, remit and commute any sentences. Therefore, papers were placed before My Lord, the Chief Justice, for posting the matter before a Bench. Subsequently, when similar matter in Crl.M.P.11211 of 1989 came before BHASKARAN, J., in view of the opinion expressed by S.T.RAMALINGAM, J., learned Judge also placed the papers before My Lord the Chief Justice for posting the matter before the Bench of this court for resolving the conflicting views of two learned judges of this Court. Therefore the matter comes before us on a reference.
5. Two questions that arise for consideration before us are:
(1) Whether the powers of the High Court in the matter of granting bail preserved under S.36-A(3) of the Act is in any way restricted by the provisions contained in S.37(1) (b) and sub section 2 of the Act?
(2) Whether the provisions contained in S.32-A of the Act is a bar for the High Court exercising its power in the Page: HC219matter of granting suspensions of sentence and bait pending disposal of the Appeal?
6. Before dealing with the rival contentions of the parties we shall refer to some of the salient provisions contained in the Act.
The Act was enacted to consolidate and amend the law relating to the Narcotic Drugs and Psychotropic Substance Act and for matters connected therewith. The Act was subsequently amended under Act 2 of 1989 and now we are concerned with the Act as amended. After defining various terms in the Act and defining powers of the various authorities and officers the Act enumerates offences and penalties in S.15 to 31 in Chapter IV of the Act. S.31-A provides for death penalty for certain offences committed after previous conviction. S.32 of the Act provide punishment for offence for which no punishment is provided. Thereafter we find S.32-A of the Act which came to be introduced under Act 2 of 1989 which reads as follows:
“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 S.33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or committed”.
S-33 relates to application of S.360 of the Code and of the Probation of Offenders Act, 1958 while S.34 of the Act refers to the provisions for security for abstaining from commission of offence at the time of conviction. Under S.36 of the Act power is given to Government for constitution of Special Court which reads as follows:-
36(1) The Government may, for the purpose of providing speedy trial the offences under this Act, by notification in the Official Gazette, constituted as many Special Courts as may be necessary for such area or areas as may be specified in the notification.
(2) A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the chief justice of the High Court.
Explanation:- In this Sub-section, “High Court” means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of Special Court was working immediately before his appointment as such Judge.
(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.
S.36-A extracted hereunder deals with the offences triable by the Special Court, remand of persons accused of or suspected of the commission of an offence under the Act, taking cognizance of the offence without committal, trial of other offences other than under the Act and preservation of the powers of the High Court under S.439 Cr.P.C
“36-A (1) Notwithstanding anything contained in the Code of Criminal Procedure,1973
(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;
(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under Sub-section (2) or sub-section (2-A) of S.167 of the Code of Criminal Procedure, 1973 such Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate.:
Provided that where such Magistrate considers:-
(i) When such person is forwarded to him as aforesaid; or
(ii) upon or at any time before the expiry of the period of detention authorized by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction'
(c) The Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under S.167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section;
(d) A special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorized in this behalf, take cognizance of that offence without the accused being committed to it for trial.
(2) when trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code of Criminal Procedure 1973, be charged at the same trial.
(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section included also Page: HC220a reference to a “Special Court” constituted under section 36.”
Under Section 36-B of the Act the power of the High Court to exercise all the powers conferred by chapters XXIX and XXX of the Code is saved and it says:
“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, on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court of Session trying cases within the local limits of the jurisdiction of the High Court.”
S.36-C provides for the application of Code to proceedings before a Special Court, which says:
“Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973(including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.”
Then S.37 of the Act provides as follows:
S.37(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973:
(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 opposes 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 limitation on grating of bail specified in clause (b) of section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.”
The other sections are not relevant for the purpose of these petitions.
7. Mr. B. Kumar, learned counsel appearing for some of the petitioners submitted that the powers of the High Court in the matter of granting of bail have been saved as per the specific provisions contained in S.36-A(3) of the Act and the provisions contained in S.37 do not restrict such power in any manner. According to him S.37 would apply only to Special Courts constituted under the Act. As it is clear from the language of S.36-A which excludes High Courts, he pointed out that the sources of the power for the special court is S.437 of the Code and not S.439 Therefore the additional limitation contained in S.37(2) of the Act must refer only to powers of the Special Court and not to the High Court which is specifically saved under S.36-A(3)of the Act. The application of the Criminal Procedure Code is not altogether taken away and there is no specific provision in the Act excluding the powers of the High Court in any manner. He further submitted that the inherent powers of the High Court as the repository of justice cannot be lightly interfered with. The application of Criminal Procedure Code and the functioning of hierarchy of the Courts are preserved and therefore the jurisdiction of the High Court is not affected in any manner. He referred to S.4(2) of the Code in this connection. According to him, the power of the High Court to grant bail is independent of the power of the trial court to grant bail. In support of his contentions he relied on the decisions of the Supreme Court in Balchand Jain v. State of Madhya Pradesh (A.I.R 1977 SC 366) which was considered by Bhaskaran, J. while coming to the conclusion that the powers of the High Court are restricted. In elaborating all the said decisions learned counsel submitted that the Supreme Court considered the scope of certain provisions contained in the Defence of India Rules, in which there was no provision similar to the provision contained in S.36-A(3) of the Act. This according to the learned counsel makes all the difference. He also referred to later decision of the Supreme Court in Usmanbhai v. State of Gujarat (A.I.R 1988 SC 922) and explained how it is not applicable to the facts of the present case.
7. Mr. Krishnamoorthy, learned counsel appearing for some of the petitioners pointed out the difference between bail and suspension, relying Page: HC221on the decisions in State V.K.M Nanavati (AIR 1960 Bombay 502) and Jairam Das V, Emperor (AIR 1945 P.C 94) He mainly dealt with the scope of S.32-A of the Act and contended that the said provisions would only refer to the power of the Government under S.432 of the Code. S.32 A and 36 Awere introduced preserving the powers of the High Court.
After the amendment of the Act there is corresponding provision for many of the provisions contained in the Criminal Procedure Code. In order to highlight the points, he referred to many sections in the Act and the Code. It was emphasized that S.32-A is similar to Section 432 and 433 of the code dealing with the powers of the Government to suspend, remit or commute the sentence. S.36-B of the Act specifically saves the powers of the High Court available under Chapter XXIX of the Code. Mr. Hajee K.A Mohammed Mustafa, counsel for petitioner, also advanced similar arguments. Mr. Shanmuga Velayutham, Mr. Raghupathy, and Mr. Rajanarayanan, counsel appearing for some of the petitioners, explained that the power of the High Court to suspend the sentence remained unaffected by the provisions of the Act.
8. In answer to the said contentions Mr. Rajamanickam, central Government Public Prosecutor, at the outset conceded that the power of the High Court in the matter of granting bail during the trial is not taken away by the Act and that though under S.36-A (3) of the Act, the power of the High Court to grant bail under S.439 of the Code is retained, this power has to be exercised by the High Court subject to the limitation prescribed under S.37 of the Act. According to him, the High Court while considering grant of bail for a person who is arrested under the provisions of the Act, has to consider various additional limitations prescribed under S.37 of the Act, in addition to the limiations contained in the Code. He referred to the language of S.37 and submitted that as there is no ambiguity, the plain meaning to the said provisions must be given. The Act is a complete legislation enacted to have effective powers to deal with notorious, smugglers dealing in Narcotic Drugs and Psychotropic Substances, as per the agreement reached between other nations. The said object has to be borne in mind in giving effect to the provisions of the Act. He contended that the Provisions contained in S.4(2) of the Code have no relevance in this case. Though the Criminal Procedure Code is not excluded in its entirety, its operation is restricted under certain specific provisions of the Act. According to him, a plain reading of S.37 of the Act shows that there is no exclusion of the jurisdiction of the High Court from the operation of the said provision and therefore, it must be construed that it would apply to the High Court also while exercising its power to grant bail under S.439 Cr. P.C He relied on the decision of the Supreme Court in Gurcharan Singh v. State (AIR 1978 SC 179) to explain the principles for the grant of and cancellation of bail under S.437 and 439 Cr.P.C He referred to the decision of the Supreme Court in Balchand v. Madhya Pradesh (AIR 1977 SC 366) wherein the Supreme Court had occasion to consider a similar provision contained in Rule 184 of the Defence and Internal Security of India Rules, 1971. According to him, this decision would squarely apply to the facts of the present case. He also relied on a later decision of the Supreme Court in Usmanbhai v. State of Gujarat (AIR 1988 SC 922: 1989 L.W (Cr.) 57 (SN)) On the basis of these decisions, he submitted that S.36-A(3) of the Act has to be read subject to the limitations contained in S.37 of the Act. While dealing with the power of the High Court to suspend the sentence after conviction, he contended that S.32-A of the Act is a bar to the exercise of jurisdiction by the High Court in the matter of suspending the sentence and granting bail.
9. We have carefully considered the various submissions made by the learned counsel appearing for the petitioners and the learned Public Prosecutor. Even though lengthy arguments were made relying on various pronounce-we Page: HC222feel it unnecessary to refer to them all. since the matter can be disposed of on a plain interpretation of the provisions contained in the Act which do not admit of any doubt. It is better to deal with the power of the High Court to grant bail under S.439 of the Code during the pendency of the trial and its power to suspended the sentence under S.389 of the Code after conviction separately.
10. At the first instance, let us deal with the power of the High Court to grant bail during remand and trial. As already pointed out, it is conceded that the High Court has got powers to grant bail. The only question to be considered in this connection is whether the limitations contained in S.37 of the Act in the matter of granting bail are applicable to the High Court in view of the specific provisions contained in S.36-A(3) of the Act. We have already referred to the relevant provisions of the Act. Under S.36 of the Act, the Government is empowered to constitute as many Special Court as may be necessary for such area or areas as may be specified in the notification. S.36-A of the Act speaks about the offences triable by Special Courts. Sub-Section(1) of the said section provides that all offences under this Act shall be triable only by the Special Courts. A detailed procedure is set out for remanding the persons accused of or suspected of the commission of an offence under this Act. The Special Court is empowered to exercise the same power which a Magistrate having jurisdiction to try a case may exercise under S.167 of the code in relation to an accused person in such case who has been forwarded to him under that section. Sub-section(2) confers powers on the special Court for trying an offence other than an offence under this Act with which the accused may be charged under the Code at the same trial while trying an offence under this Act. Thereafter, a specific provision is made in sub-section (3) declaring that nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code. A reading of this section shows that the power of the High Court to grant bail both at the stage of remand and during trial under section 439 of the Code is saved. Therefore on a plain construction of this section, there is no room to doubt about the powers of the High Court in the matters of granting bail under section 439 and it is not possible to restrict such powers by invoking the provisions of the Act under section 37 which is intended for a specific purpose. This position is made clear by the subsequent sub-section of S.36 of the Act.
11. S.36-B of the Act relates to the jurisdiction of the High Court regarding appeal and revision. This section categorically states that the High Court may exercise all the powers conferred by Chapters XXIX and XXX of the code 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. As per S.36-C of the Act, the provisions of the Code are made applicable to the proceedings before a Special Court save otherwise provided in this Act and for this purpose, the Special Court shall be deemed to be a Court of Session. Certain transitional provisions are made under S.36-D of the Act. Then we have S.37 according to which every offence punishable under this Act shall be congnizable and 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 unless the Public Prosecutor has-been given an opportunity to oppose the application. It further provides that where the Public Prosecutor opposes the application, if 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, the Court can release him on bail. Sub-S.(2) of the said section provides that the limitations on granting of bail specified in clause (b) of sub-section (1) or in addition to the limitations under the Code of any other law for the time being in force on granting of bail. Therefore, a careful analysis of the various sub-sections of S.36 of the Act would clearly indicate that the provision in sec-Page: HC223would clearly indicate that the provision in section 37 of the Act would apply only to the Special Court as this sub-section comes after sub-section (e) and (d) of section 36, which deal with the applicability of the Criminal Procedure Code to the proceedings before the Special Court. There is no indication in the Act anywhere to assume that the limitations referred to in S.37 of the Act would apply to the powers of the High Court also which are specifically saved under S.36-A(3) of the Act. If that had been the intention of the Parliament, it would have certainly imposed such restriction in S.36-A(3) itself while declaring the unlimited powers of the High Court available under S.439 of the Code. Therefore, there is no doubt in our mind that the limitations referred to in S.37 of the Act cannot be read in to the provisions contained in S.36-A(3) of the Act.
12. Learned counsel for the petitioners as well as the learned Central Government Public Prosecutor placed reliance on the decision of Supreme Court reported in Balchand Madhya Pradesh (AIR 1977 SC 366). It was a case where the Supreme Court had to consider the applicability of section 438 of the Code to an offence punishable under the Defence and Internal Security of India Rules, 1971 in view of the restrictions contained in Rule 184 which runs thus:
184. Not withstanding 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 on his own bond unless:-
(a) The prosecution has been given an opportunity to oppose the application for such release, and
(b) where the protection opposes the application and the contravention is of any such provision of these Rules or orders made there under as the Central Government or the State Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contraventions.
The High Court of Madhya Pradesh was of the opinion that in view of this particular distinction between bailable and non-bailable offences which have been expressly made in section 438 of the Code, and having regard to the conditions incorporated in rule 184(a) & (b), section 438 of the Code is repealed by this rule as being inconsistent with it. The supreme court elaborately considered the scope of section 438 of the Code and came to the conclusion that the opinion expressed by the High Court is not correct and held that section 438 and Rule 184 operate at different stages, one prior to arrest and the other after arrest and there is no overlapping between these two provisions, that rule 184 does not stand in the way of a Court of Sessions or a High Court granting anticipatory bail under section 438 of the Code, that rule 184 postulates the existence of power under the Code and seeks to place a curb on its exercise by providing that a person accused or convicted of contravention of any rule shall not be released on bail unless the conditions mentioned in the rule are satisfied and the non-abstante clause is intended to restrict the power of granting bail under the Code and not to confer a new power exercisable only on certain conditions. The Supreme Court further held as follows:-
“It imposed fetters on the exercise of power of granting bail in certain kinds of cases and remove such fetters on fulfillment of the aforesaid two conditions. When these two conditions are satisfied, the fetters are removed and the power of granting bail possessed by the Court under the Code of Criminal Procedure revives and become exercisable. The non-abstante clause at the commencement of the Rule also emphasises that the provision in the Rule is intended to restrict the power of granting bail under the Code of Criminal Procedure and not to confer a new power exercisable only on certain conditions. It is not possible to read Rule 184 as laying down as self contained code for grant of bail in case of a person accused or convicted of contravention of any Rule or order made under the Rules so that the power to grant bail in such case must be found only in Rule 184 and not in the Code of Criminal Procedure. Rule 184 cannot be construed as displacing altogether the provisions of the Code of Criminal Procedure in regard to bail in case of a person accused or convicted of contravention of any Rule or order made under the Rules. These provisions of the Code of Criminal Procedure must be read along with Rule 184 and full effect must be given to them except in so far as they're, by reason of the non-obstante clause overridden by rule 184.”
Ultimately, the Supreme Court held that section 438 of the Code has not been repealed by Rule 184 but both have to be read harmoniously and Rule 184 is only supplemental to section 438 of Page: HC224the Code and contains guidelines which have to be followed by the court in passing orders for anticipatory bail in relation to cases covered by Rule 184.
13. Mr. B. Kumar, learned counsel appearing for the petitioners submitted that the decision in Balchand's case will not apply to the facts of the present case since there is no provision similar to one that is contained in S.36-A(3) or the present Act. According to him, even though S.37 of the present Act contains similar provisions as in Rule 184 of the Defence of India Rules referred to above, the decision in Balchand's case is distinguishable in view of the provisions contained in S.36-A(3) of the Act. We have already discussed the scope of S.36-A(3) of the Act and the applicability of the limitations contained in S.37 of the Act in so far as the powers of the High Court to grant bail are concerned. The decisions in Balchand's case cannot be construed to mean that the powers of the High Court to grant bail without reference to the saidlimitations, have been taken away. In the absence of a similar provision to S.36-A(3) of the Act in the Defence of India Rules, it is not possible to come to such a conclusion. Even in Balchand's case, the Supreme Court recognised the power of the High Court to overlook the limitations in appropriate cases. It was held as follows:-
“But even if Rule 184 does not apply in such a case, the policy behind this Rule would have to be borne in mind by the Court while exercising its power to grant ‘anticipatory bail’ under S.438 The rule making authority obviously thought offences arising out of contravention of Rules and orders made there under were serious offences as they might imperil the defence of India or civil defence or internal security of public safety or maintenance of public order or hamper maintenance of supplies and services to the life of the community and hence it provided in rule 184 that no person accused or convicted of contravention of any rule or order made under the Rules, shall be released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of the rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention. If these are the conditions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant ‘anticipatory bail’ to a person apprehending arrest on such occasion, though they would not be strictly applicable, when a person apprehending arrest on an accusation of having committed contravention of any Rule or order may under the rules applies to the Court for a direction under S.438, the Court should not ordinarily grant him ‘anticipatory bail’ under that section unless a notice has been issued to the prosecution giving it an opportunity to oppose the application and in case the contravention is of a Rule or order specially notified in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. These would be reasonably affective safeguards against improper exercise of power of granting ‘anticipatory bail’ which might in conceivable cases turn out detrimental against public interest. When we say this, we must, of course make it clear that we do not intend to lay down that in no case should an ex-parte order of ‘anticipatory bail’ be made by the Court. There may be facts and circumstances in a given case which may justify the making of an exparte interim order of ‘anticipatory bail’ but in such an event, a short dated notice should be issued and the final order should be passed after giving an opportunity to the prosecution to be in opposition.
14. The learned Central Government Public Prosecutor referred to the later decision of the Supreme Court in Usmanbhai v. State of Gujarat (AIR 1988 SC 922) where their Lordships of the Supreme Court distinguished the decision in Balchand's case when they considered the jurisdiction and power of the Court to grant bail under S.439 of the Code to a person held in custody accused of an offence under S.3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and as to the nature of the restraint placed on the power of the designated Court to grant bail to such person in view of the limitations placed on such power under S.20(8) of the Act. We find that almost similar restrictions as one noticed in the present Act are found in S.20(8) of the said Act. It is a case in which there is a specific provision under S.19(1) of the said Act conferring jurisdiction only on Supreme Court to entertain appeals and there is an exclusion of jurisdiction of the other Court under Sub-section (2) of the said section which says that except as aforesaid no appeal or revision shall lie to any Court from any judgment sentence or order including an interlocutory order of a Designated Court. The Supreme Court held that the Legislature by enacting the law has treated terrorism as a special criminal problem and Page: HC225created a special Court called a Designated Court to deal with the special problem and provided for a special procedure for the trial of such offences and that the Act is a special Act and creates a new class of offences and provides for a special procedure for the trial of such offences. It was further held that the jurisdiction and power of a Designated Court is derived from the Act and it is the Act that one must primarily look into in deciding the question before the Court. After elaborately considering the various provisions of the Act and the applicability of the Criminal Procedure Code, the Supreme Court finally held that there is a total departure from different classes of Criminal Courts enumerated in section 6 of the Code and a new hierarchy of Courts is sought to be established by providing for a direct appeal to the Supreme Court from any judgment or order of a Designated Court and substituting the Supreme Court for the High Court by section 20(6) in the matter of confirmation of a death sentence passed by a Designated Court. Ultimately, the Supreme Court held that the High Court has no jurisdiction to entertain an application for bail under section 439 or under section 482 of the Code. We find that the said decision of the Supreme Court is not applicable to the facts of the present case, since under the present Act the jurisdiction of the High Court is not taken away in any manner as already discussed by us.
15. In view of the above said principles laid down by the Supreme Court and the unambiguous provisions contained in the present Act, there is no difficulty in holding that the limitations referred to in S.37 of the Act do not restrict the power of the High Court to grant bail under S.439 of the Code. But that does not mean that the High Court should ignore those limitations altogether in all cases. As already noticed, the Act is intended to serve a specific purpose of preventing the trade b narcotic drugs which is causing havoc to the economy of the country and the health of the citizens of this country. The Parliament thought that such offenders should be dealt with rigorously and they should not be allowed to move freely in the Society. The object of the Legislation is reflected in section 37 of the Act by way of limitations of the power of the Courts to grant bail. That is the reason why in Balchand's case, the Supreme Court observed that the provisions of the Code of Criminal Procedure must be read along Rule 184 of the Defence and Internal Security of India Rules, 1971. After having laid down the principles, the Supreme Court finally explained the position by observing that it must be made clear that they did not intend to lay down that in no case, should an exparte order of anticipatory bail be made by the Court and there may be facts and circumstances in a case which justify the making of exparte interim order of anticipatory bail, but in such an event, a short dated notice should be issued and the final order should be passed after giving an opportunity to the prosecution to be heard in opposition.
The said observations made in respect of anticipatory bail would clearly apply to the grant of regular bail also. Therefore, it is made clear that the High Court will always bear in mind the limitations imposed by the Parliament in S.37 of the Act while considering the question of granting bail under section 439 of the code and it is for the High Court to decide as to the applicability of the said limitations or otherwise according to the facts of each case.
16. As far as the second point regarding the power of the High Court to suspend sentence pending disposal of the appeal is concerned, there is no difficulty at all. We have already referred to the various relevant provisions of the Act in the earlier part of this order. The act enumerates offences and penalty in sections 15 to 31 in Chapter IV of the Act, S.31-A provides death penalty for certain offences, S.32 of the Act provides punishment for offences for which no punishment is provided. It is only in the course of this Scheme section 32-A is found according to which no sentence awarded under the Act other than section 27 shall be suspended or remitted or commuted. The next provision in S.33 refers to application of S.360 of the Code Page: HC226and the Probation of Offenders Act, 1958. It is followed by S.34 of the Act under which provisions are made for obtaining security for obtaining from commission of offence. Therefore, S.32-A coming in the Scheme of the Act as noticed above can refer only to the provisions regarding punishment and it cannot refer to the power of the High Court to suspend the sentence after conviction. Apart from that, the language of the section itself shows that it cannot refer to the powers of the Court, since the High Court has no power to remit or commute the sentence which vests only with the Government under sections 432 and 433 of the Code. The said Section is equivalent to sections 432 and 433 of the Code. Under S.432(1) of the Code the appropriate Government is given ample powers to suspend the execution of sentence or remit the whole or any part of the punishment to which any person has been sentenced to punishment of an offence. The other part of the section deals both the procedure for suspending or remitting the sentence. S.433 of the Code confers o n the Government to commute the sentence. These two powers do not vest with the Court and, therefore, the language of S.32-A of the Act, which speaks of suspension, remission and commutation of sentence clearly shows that it refers only to the Government and not to the Court. Apart from that, we have already extracted S.36-B of the Act which, in categorical terms, says that the High Court may exercise, so far as may be applicable, all powers conferred by Chapters XXIX and XXX of the Code. It is couched in such general terms as to exclude any limitations on such powers. It is significant to note that the power of the High Court to suspend sentence is provided under S.389 of the Code which comes under Chapter XXXI of the Code. The Parliament in its wisdom has chosen to leave the powers of the High Court to suspend sentence unaffected by providing S.36-B of the Act. If the framers of the Act had intended to restrict the power of the High Court to suspend sentence after conviction, they would have certainly made a specific provision to that effect. The Supreme Court has repeatedly held that the exclusion of jurisdiction cannot be inferred and that a statute ousting the jurisdiction of a Court must be strictly construed. The bar imposed under Section 32-A of the Act shows that the Parliament intended to curtail the unlimited powers the Government to suspend, remit and commute the sentence since the intention of the Act is to impose deterent punishment in order to curb the notorious activities in drug trade which affects the health and the well-being of human beings. Every possible effort to bring in political influence is sought to be avoided under this provision. Therefore, we have no hesitation in holding that the power available under section 389 of the Code to suspend sentence is not taken away by section 32-A o f the Act. However, we must add that the limitations contained in section 37 of the Act will have to be borne in mind by the High Court while suspending the sentence and enlarging the accused on bail. Even at this stage, the High Court will have to bear in mind the object of the Act and it should exercise its powers with great care and caution, so that the very object of the Act is not defeated.
The answer to the questions referred to us, follow the reasons, expressed by Arunachalam, J.
ARUNACHALAM, J.:
Here are my own reasons in support of our conclusions: Detailed facts may not have to be reiterated, as that has been done by my learned brother Sivasubramaniam, J.S.36-A(3) of the Narcotic Drugs and Psychotropic Substances Act, 1985, Act No.61 of 1985, as amended by Act 2 of 1989, hereinafter referred to as the “Act” runs as hereunder:-
“36-A (3)--Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under S.439 of the Code of Criminal Procedure, 1973, and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section included also a reference to a “Special Court” constituted under S.36”.
Page: HC227A reading of this sub-section positively affirms of preserving the special powers of the High Court regarding bail under S.439 of the Code of Criminal Procedure. It has also been made clear that the word “Magistrate” under S.439 (1) (b) of the Criminal Procedure Code should be read as including a special Court constituted under S.36 of the Act.
2. S.439 of the Criminal Procedure Code refers to the special powers of High Court or Court of Session regarding bail. This special Court not being a Court of Session, its source of power regarding bail cannot be derived under S.439 of the Code. S.36- A(3) preserves only the power of the High Court and not the Court of Session. Though the Special Court constituted under the Act shall be deemed to be a Court of Sessions, the legal fiction may have to be restricted to the procedure to be followed for the trial of an offence under the Act. In other words, such trial must be in accordance with the procedure prescribed under the Criminal Procedure Code for the trial before a Court of Session, in so far as applicable.
3. S.36-C of the Act, which runs as follows:
“36-A. Save as otherwise provided in this Act, the provision of the Code of Criminal Procedure, 1973 (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor”.
Preserve the provisions of the Code of Criminal Procedure, including the provision as to bail and bonds to the proceeding before a Special Court by deeming it to be Court of Sessions, save as otherwise provided under the Act. The heading of the section may give an indication that the contemplation of the section related to the proceedings before a Special Court. Merely because the words ‘including the provisions as to bail and bonds’ have been used in this section, the source of power for the Special Court cannot be under S.439 of the Code of Criminal Procedure. The source of power for the Special Court to grant bail is not derived from S.36-C or S.37, but flows from the provisions of the Code of Criminal Procedure. Therefore, the power to grant bail, by the Special Court, under the provisions of the Code, is vested by S.36-C of the Act and that is the reason why the words ‘including the provisions as to bail and bonds; form part of S.36-C. The power to grant bail under S.439 of the Code of Criminal Procedure is unfettered by any condition and limitation like S.437 The source of power for the Special Court to grant bail will have to be meaningfully interpreted in the light of S.36-C and S.37 of the Act. S.36-C enjoins ‘save as otherwise provided under this Act’ and S.37 reads, notwithstanding anything contained in the Code of Criminal Procedure, 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 the conditions set forth in (i) and (ii) are satisfied. S.37(2) of the Act which states that the limitations on granting of bail specified in clause (b) of Sub-section'(1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force, on granting of bail, it must be held that Special Court, which is not a Court of Session, will not derive the source of power to grant bail under S.439 of the Criminal Procedure Code, but will derive power under section 437 of the Criminal Procedure Code, since it is a Court other than the High Court or Court of Session. It is, therefore, apparent that the limitation under section 437 of the Criminal Procedure Code and the limitation under section 37 of the Act are applicable to the Special Court, whereas the High Court's power under section 439 of the Criminal Procedure Code, which is unfettered, is preserved under section 36-A(3) of the Act. Though the Special Court is vested with the status of a Court of Session, it will not be a Court of Sessions within the meaning of section 439 of the Criminal Procedure Code and the legal fiction' must, therefore, be restricted, keeping in view the object of the Act. Even if it were to be held, that the source of power for the Special Page: HC228Court for bail will spring from section 439 of the Criminal Procedure Code, it will be even then subject to limitations under section 37 of the Act, in view of section 36-C of the Act, whereas section 36-A(3) of the Act saves the unfettered powers of the High Court under Section 439 Cr.P.C
4. Though the powers of the High Court to grant bail under section 439 of the Criminal Procedure Code is unlimited, the object of the enactment and the policy behind section 37 of the Act, may have to be borne in mind, while exercising such power.
5. S.32-A of the Act cannot apply to Courts and the reasons therefore have been spelt out lucidly by Sivasubramaniam, J., The power of suspension of sentence pending appeal, by the High Court is preserved under S.36-B of the Act. S.36-B of the Act reads as follows: -
“36-B. 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, 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”.
This section specifically refers to Chapters XXIX and XXX of the Code of Criminal Procedure. Chapter XXIX of the Code refers to appeals to various Courts inclusive of the Supreme Court, High Court and the Court of Session. Chapter XXX deals with reference and revision. Even this Chapter embraces the powers of the High Court and the Court of Session. Since these two Chapters take within their fold Courts other than the High Court also, the words ‘so far as may be applicable, have been used in this section. In other words, it means that the High Court may exercise the powers conferred by Chapters XXIX and XXX of the Code so far as may be applicable to it, thereby excluding the other provisions in those Chapters, which deal with the powers of Courts other than the High Court.
6. Therefore, the answer to the two questions referred to us are:-
(1) The powers of the High Court in the matter of granting bail preserved under S.36-A(3) of the Act are not in any way restricted by the provisions contained in S.37(1) (b) and Sub-section (2) of the Act, though while exercising the unfettered power, the High Court will bear in mind the policy behind the enactment of S.37 of the Act:; and
(2) S.32-A of the Act is not a bar for the High Court exercising its power in the matter of granting suspension of sentence and bail pending disposal of an appeal. The powers of suspension under S.389 of the Code are preserved by S.36-B of the Act. S.32-A will refer only to the Government and not to Courts.
7. Sivasubramaniam and Arunachalam, JJ.:- In view of the fact that the bail applications are pending for a long time, the same will be posted before the 1st Vacation Court.