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TMI Blog1999 (3) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 33, no sentence awarded under this Act (other than section 27) shall be suspended or remitted or commuted." A plain reading of the above Section is that it prohibits suspension of a sentence awarded under the Act except in the case of an offence under Section 27. To make the aforesaid meaning clearer the legislature has added a non obstante limb to the Section to the effect that such prohibition is operative in spite of any other provision contained in the Code of Criminal Procedure, 1973 (for short the Code) or under any other law. But the impact of the aforesaid ban is sought to be diluted with the help of Section 36B of the Act which reads thus: "36B. Appeal and revision 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." Chapter XXIX of the Code contains a fasciculus of provisions for dealing with Appeals among which is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntence. If the intention of Parliament in enacting Section 32A of the Act is only to curb Governments powers under Sections 432 and 433 of the Code the Parliament would, instead of using the present all covering words in the non obstante clause (notwithstanding anything contained in the Code or in any other law) have employed the words notwithstanding anything contained in Chapter XXXII of the Code. Precision and brevity are generally the hallmarks of legislative draftsmanship. Hence lesser words for achieving the purpose would have been employed by the legislature while framing a provision in the statute. That apart, could parliament have laboured so much if its only object was to bridle the powers of the Government under Section 432 and 433 of the Code because even apart from those provisions a Government could achieve it by exercising the constitutional powers. Article 72 of the Constitution of India confers power on the President of India to suspend, remit or commute sentence in all cases where punishment or sentence is for an offence against any law relating to a matter to which executive power of the Union extends. Art.161 contains similar power which Government of a State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the need to further strengthen the bail provisions. That apart, we are not aware of any criticism from any quarter that Government have been remitting or suspending or commuting sentences awarded to persons convicted of offences under the Act. It is preposterous to think that a situation was created by which Parliament was forced to step in to curb the executive powers of the Government to suspend sentences passed on the convicts under the Act. At this juncture a reference to Section 37 of the Act is apposite. That provision makes the offences under the Act cognizable and non-bailable. It reads thus: "37. Offences to be cognizable and nonbailable.- (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 sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of the Kerala High Court in Berlin Joseph @ Ravi vs. State (1992 1 Crimes 1221 = 1992 KLT 514) has adopted the view that Section 32A of the Act has curtailed the powers of the court to suspend the sentence passed on a convicted person of offences under the Act, except the offence under Section 27. A Division Bench of Rajasthan High Court in Anwar vs. State (1994 2 Crimes 687) and a Full Bench of Madhya Pradesh High Court in Rajendra Singh vs. State of M.P. (1995 Crl. Law Journal 3248) have also adopted the same view. But a Division Bench of the Delhi High Court in Amarjit Singh vs. State (1993 2 Recent Crl. Reports 466) has taken a different view on Section 32A. Though the Full Bench decision in Berlin Joseph vs. State (supra) was brought to the notice of the Division Bench it was skipped by a curt observation in the following lines: "Mr. Handa strongly relied on a later Full Bench decision of the Kerala High Court in Berlin Joseph @ Ravi v. State (1992 1 Crimes 1221) where the Full Bench has taken the view that High Court has no power to suspend the senten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific and the sentence of imprisonment shall be deemed to be suspended. When power of suspending the sentence is taken away by the legislative interdict, it would apply to the court which convicts the accused as well. A legal premise cannot be made up on a wrong assumption. The upshot of the above discussion is that Section 32A of the Act has taken away the powers of the court to suspend a sentence passed on persons convicted of offences under the Act (except Section 27) either during pendency of any appeal or otherwise. Similarly, the power of the Government under Section 432, 433 and 434 of the Criminal Procedure Code have also been taken away. Section 32A would have an overriding effect with regard to the powers of suspension, commutation and remission provided under the Criminal Procedure Code. Before parting with the matter we must deal with a possible fall-out of adopting such a view. Learned counsel for the appellant has voiced a concern that if High Courts have no power to suspend sentence under any contingency its consequence is that long duration of pendency of appeals would result in serious miscarriage of justice in many cases. We are aware of such hard consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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