TMI Blog1999 (3) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... worked out by Parliament. Till then the High Courts should direct the Registry to board appeals under the Act on a priority basis and dispose them of as early as possible. As a temporary measure to lessen the problem we direct the Registry of each High Court to include every appeal (against conviction of offences under the Act) in the hearing list as soon as such appeal becomes ripe for hearing. - CRL.A. 312 OF 1999 - - - Dated:- 17-3-1999 - K.T. Thomas and M.B. Shah, JJ. JUDGMENT: Thomas J. Leave granted. Can the sentence, passed on a convicted person under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) be suspended during the pendency of appeal presented by him? Answers given to the said question by different High Courts are in different tones. The question has now winched to the fore in this Court as the appellant did not succeed in getting the sentence (passed on him) suspended by the High Court though he moved for it on presentation of an appeal in challenge of the conviction and sentence. Section 32A of the Act, which was inserted by Act No.2 of 1989 reads thus: "32A. No suspension, remission or commutation in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent of adaptability because of the words employed therein so far as may be applicable. This means, the High Court can exercise powers under Chapter XXIX of the Code only to the extent such powers are applicable. In other words, if there is an interdict against applicability of any provision, the High Court cannot use such provision, albeit its inclusion in Chapter XXIX of the Code. That is the effect of employment of the words so far as may be applicable when a statute incorporates provision of another statute. Otherwise Section 32A of the Act must have been intended for covering some other field altogether. Learned counsel contended that the Section is intended to cover the provisions subsumed in placitum E in Chapter XXXII of the Code. Sections 432 to 435 are bundled therein. The sub-title given to placitum E is this: Suspension, Remission and Commutation of Sentences. Section 432 deals with the power of the appropriate Government to suspend execution of any sentence or to remit the whole or any part of the punishment to which any person has been sentenced. Section 433 deals with the powers of the Government to commute sentence. The contention is that Parliament has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n suspend, remit or commute sentences in exercise of the constitutional functions. For the aforesaid reasons we are not impressed by the contention that the sole object of incorporating a provision like Section 32A in NDPS Act was to impose curb on the executive power under Sections 432 and 433 of the Code to suspend, remit or commute the sentence passed on a particular accused. In this context the raison detre for introducing Section 32A in the Act can be looked at. In the Statement of Objects and Reasons for introducing Bill No.125/1988 in the Lok Sabha (which later became Act 2 of 1989) the following passage has been mentioned as one of the statements: "Even though the major offences are non-bailable by virtue of the level of punishment, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of NDPS Act, 1985 the need to amend the law to further strengthen it, has been felt." One of the objects mentioned therein is this: To provide that no sentence awarded under the Act shall be suspended, remitted or commuted. It must be pointed out that in the Statement of Objects and Reasons no concern w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding bail cannot be more liberal and lighter after the trial court finds him guilty of the offence on completion of the adjudication. The interpretation sought to be placed by the learned counsel would lead to the consequence that power of court to release an accused on bail during preconviction is rigorous while it will be liberal during post-conviction period. We do not think that Parliament would have intended such a consequence to take place. Section 32A was intended to plug the lacuna which existed during the pre-amendment stage. It is pertinent to notice that Section 32A itself exempted cases falling under Section 27 of the Act by putting the words other than Section 27 within a parenthesis. This is because Section 27 deals with offences of far lesser degree when compared with the other offences in the Act. Learned counsel contended that if that was the intention of Parliament Section 26 also would have been included in the parenthesis so as to exempt that offence from the purview of Section 32A. We are not disposed to question the wisdom of Parliament as to why Section 26 was also not brought within the exemption. Perhaps it was not so done because Section 26 relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the aforesaid three premise are faulty. We have already dealt with the contention that Section 36B would take care of powers of the appellate court to suspend the sentence and we found that the provision cannot override the clear ban contained in Section 32A of the Act. The second premise that the word award should be construed not as a sentence passed by the trial court cannot be upheld at all. How can it be said that when trial court awards a sentence that cannot be treated in law as a sentence awarded. Then what is the legal import of such a sentence? To say that a sentence passed by a trial court would be no awarding of sentence merely because the conviction has been challenged, appears to us to be too tenuous for countenance. The third premise adopted by the Gujarat High Court is based on a fallacious assumption that in spite of Section 32A the trial court has power to suspend the sentence passed on a conviction under Section 26 of the Act. Learned judges wrongly assumed that under Section 389(3) of the Code a trial court has such a power. The effect of any order passed under Section 389(3) of the Code is to suspend the sentence, as can be discerned from the words in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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