BERLIN JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) There is clear cleavage of opinions between two learned Judges of this Court regarding interpretation of certain provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act'). The main questions on which such different, interpretations were made by the learned Judges are these:

(2.) The questions came before Full Bench after some tides and drifts. We shall state briefly the background of how it reached the Full Bench. In Appachan v. Excise Circle Inspector ( 1990 (2) KLT 610 ), Balakrishnan, J. held that S.37 of the NDPS Act does not override S.167 of the Code. But correctness of the said decision has been doubted by Ramakrishnan, J. in another case and referred it to a Division Bench. It was in the said case that the two learned Judges took conflicting views. The decision of the division bench is reported in Phasalu v. State of Kerala ( 1991 (2) KLT 787 ). Pareed Pillay, J. took the view that High Court has no power to suspend sentence during pendency of the appeal, whereas Balakrishnan, J. adopted the opposite view that High Court has the power to suspend such sentence on the premise that power of the High Court under S.389 of the Code is saved by the operation of S.36-B of the NDPS Act. As the two learned Judges adopted two conflicting views on the legal position, those cases were laid before another single Judge. Padmanabhan, J. (learned single Judge) agreed with Balakrishnan, J. that S.32-A of the NDPS Act is not meant to curtail the powers of the High Court. He proceeded further and held that such power of the High Court is subject to S.37 of the NDPS Act.

(3.) In Crl.M.P.No.1742/91, petitioner is a convicted accused who filed an appeal against his conviction and sentence before this Court. He prays for suspension of the execution of sentence passed against him. In Crl.M.C. No. 1155/91, petitioner challenges the order of the Sessions Judge dismissing his application for bail on the ground that proviso to S.167(2) of the Code is not applicable. Thulasidas, J. doubted the correctness of the decisions in Phasalu v. State of Kerala (1991 (2) KLT 787) including the decision of Padmanabhan, J. and referred these cases to a larger bench. When these cases came before a division bench, they have been referred to a Full Bench to resolve the conflict. That is how these matters are before the Full Bench now.