2001 (8) TMI 317 - SC - Central Excise

Whether power under Section 64 of the Narcotic Drugs and Psychotropic Substances Act 1985 can be exercised by the Central Government in favour of a person after the Sessions Judge has rejected an application by such person for pardon under Section 307 of the Code of Criminal Procedure 1973? Held that - Assuming there is a conflict between the powers of the Court under Section 307 Cr.P.C. and the power of the Central Government under Section 64 of the Act then it must be held that Section 64 would prevail both on the ground that the Act being a special Act overrides the Cr.P.C. which is a general Act and also because the later enactment must prevail over the earlier one. As after the decision of the High Court the respondent No. 1 has in fact tendered the evidence promised by him. To refuse him the immunity now would not only be illegal but particularly unjust thus the decision of the High Court and appeal dismissed.

Summary

Issues Involved:
1. Scope of power under Section 64 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Whether the Central Government can exercise this power after the Sessions Judge has rejected an application for pardon under Section 307 of the Code of Criminal Procedure, 1973.
3. Validity of the Sessions Judge's rejection of the respondent's application for pardon.
4. The role of the prosecutor and the NCB in granting pardon or immunity.
5. Interpretation of the term "prosecution" within the context of Section 64.
6. The interplay between Section 64 of the Act and Sections 306 and 307 Cr.P.C.
7. The legality of the High Court's decision to allow the respondent's writ application and the subsequent appeal by the appellant.

Detailed Analysis:

1. Scope of Power under Section 64 of the NDPS Act:
The appellant challenged the High Court's order upholding the Central Government's grant of immunity to the respondent under Section 64 of the NDPS Act. The Supreme Court examined whether the Central Government's power under Section 64 could be exercised after the Sessions Judge had rejected an application for pardon under Section 307 Cr.P.C. The Court noted that Section 64 allows the Central Government to grant immunity to any person involved in the contravention of the Act's provisions, provided it is deemed necessary or expedient and the reasons are recorded in writing. This power is not limited to the pre-trial stage and can be exercised at any time during the trial.

2. Central Government's Power Post-Rejection by Sessions Judge:
The appellant contended that once the Sessions Judge rejected the respondent's application for pardon under Section 307 Cr.P.C., the Central Government could not grant immunity on the same facts under Section 64. The Supreme Court disagreed, stating that the powers under Section 64 are independent and do not conflict with the powers conferred on the Court under Sections 306 and 307 Cr.P.C. The Court emphasized that the role of the Court in granting pardon is distinct from the role of the Executive in granting immunity, and both can operate concurrently.

3. Validity of Sessions Judge's Rejection:
The Sessions Judge had rejected the respondent's application for pardon, reasoning that the respondent's evidence was not necessary and would be weak. The Supreme Court found this rejection to be incorrect, noting that the Court should not assess the probable value of the evidence before it is given. The decision to grant pardon should be based on the prosecution's need for the evidence, not the Court's anticipation of its value.

4. Role of Prosecutor and NCB:
The Supreme Court highlighted the distinct roles of the prosecutor and the NCB in the context of granting pardon or immunity. While the Court has the power to grant pardon under Section 307 Cr.P.C., it is the prosecution's job to determine whether such evidence is required. The NCB, acting as the Executive, has the authority to grant immunity under Section 64 to bolster its case with evidence from an accomplice.

5. Interpretation of "Prosecution" in Section 64:
The appellant argued that "prosecution" in Section 64 should be limited to the initiation of proceedings, thus restricting the grant of immunity to the pre-trial stage. The Supreme Court rejected this narrow interpretation, stating that "prosecution" must be understood in the context of the entire proceeding until the judgment is delivered. The term "immunity from prosecution" means freedom from punishment during the entire legal proceeding.

6. Interplay between Section 64 of the Act and Sections 306 and 307 Cr.P.C.:
The Court clarified that there is no conflict between the powers exercised by the Court under Section 307 Cr.P.C. and by the Government under Section 64 of the Act. Section 64 explicitly brings to the fore the Executive's role in granting immunity, which already exists under Section 307. The Court noted that even if there were a conflict, Section 64, being part of a special Act, would prevail over the general provisions of the Cr.P.C.

7. Legality of High Court's Decision:
The High Court had allowed the respondent's writ application, holding that the Sessions Judge was wrong in limiting the power under Section 64 to a stage before the prosecution commenced. The Supreme Court upheld the High Court's decision, emphasizing that the power under Section 64 can be exercised at any time during the trial. The Court also noted that the respondent had already tendered the promised evidence, and denying immunity now would be illegal and unjust.

Conclusion:
The Supreme Court dismissed the appellant's appeal, upholding the High Court's decision and affirming the validity of the Central Government's grant of immunity to the respondent under Section 64 of the NDPS Act. The Court emphasized the independent and concurrent nature of the powers under Section 64 and Section 307 Cr.P.C., and clarified the broad scope of the term "prosecution" within the context of Section 64.