PHASALU Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE two appeals and the Cr1. M. P. came up before a division Bench on reference doubting the correctness of the decision in appachan v. Excise Circle Inspector (1990 (2) KLT610) regarding the interpretation of S. 37 of the Narcotic Drugs and Psychotropic Substances Act. In the Crl. M. Ps. both the learned judges took the view that though S. 37 is applicable, to the High Court also in granting bail under S. 439, that provision is inapplicable when the accused has been convicted and he files appeal seeking suspension of sentence. But Pareed Pillay, J. said that S. 32a stands in the way of suspending sentence and granting bail. On that ground the petitions were dismissed. But Balakrishnan, J. said that S. 32a is not applicable to the High court and it affects only the powers of the Government under Ss. 432 and 433 of the Code of Criminal Procedure. Petitions were allowed. That is how these petitions came up before me on reference to express my opinion. The opinion to be given is on the question whether the two applications are to be allowed or not

(2.) THERE cannot be any doubt that S. 32a is not meant to curtail the powers of the High Court. S. 32a contains a non-obstante clause that notwithstanding anything contained in the Code of Criminal Procedure or any other law no sentence awarded under the Act other than under S. 27 shall be suspended or remitted or commuted. The power of the High Court for suspension is only under S. 389 pending appeal and that may apply to revisions also. Remission or commutation, if any, are applicable so far as the High Court is concerned only in its appellate jurisdiction which takes the revisional jurisdiction also. S. 36a saves the powers of the High Court under S. 439 of the Code of criminal Procedure but we are not very much concerned with that provision because the saving is only with reference to S. 36a alone. But there is S. 36b which says that so far as may be applicable the High Court may exercise all powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure. Chapter XXIX deals with appeals and Chapter XXX deals with reference and revision. Ss. 386 and 389 are in Chapter XXIX. When all the powers of the High court under these chapters are saved, it is not possible to think that S. 32a is intended in any way to affect the powers of the High Court.

(3.) IT is true that in S. 37 of the Act and in S. 439 of the code of Criminal Procedure, the words used are "any person accused of an offence". Under S. 37 such a person, if the offence is punishable with imprisonment of five years or more under the Act, cannot be released on bail without giving the Public Prosecutor an opportunity to oppose, and if he opposes without being satisfied that there are reasonable grounds to believe that he is not guilty and that he is not likely to commit any offence while on bail. We must understand the purpose behind this provision which I need not emphasise here because it is evident. A person who is accused of an offence will not cease to be so simply because he is tried, convicted and sentenced. Appeal is continuation of the proceeding and the accused continues to be so till the proceeding comes to a final conclusion. A person who was found guilty, convicted and sentenced by a competent court cannot, in the matter of bail, be treated on a better position than one who is only under the stage of investigation, inquiry or trial. IT may not be correct to say that S. 37 inhibits grant of bail only during trial and inhibition is over as soon as trial and conviction are over. Being a special enactment dealing with a special situation the provision must have overriding effect on the provisions of the code of Criminal Procedure especially in view of the non-obstante clause. S. 37 is not withstanding anything contained in the Code. IT is not necessary that the wording should be such as to specifically include a convicted person also. That is implied. Provisions as to bails and bonds are only those in Chapter xxxiii. Other provisions or reference, if any, in the Code could only indicate instances in which bail or bond could be ordered. But they are also subject to chapter XXXIII though stringency of conditions maybe different as in S. 167 (2 ). That provision is also subject to S. 37 of the Narcotic Drugs and Psychotropic substances Act.