LAWS(KER)-1992-2-2

BERLIN JOSEPH RAVI Vs. STATE OF KERALA

Decided On February 02, 1992
BERLIN JOSEPH RAVI Appellant
V/S
STATE Respondents

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 Psychotopic Substances Act, 1985 (for short the NDPS Act). The main questions on which such different interpretations were made by the learned Judges are these: (1) Whether the High Court can suspend the sentence passed on an accused convicted of an offence under NDPS Act during pendency of his appeal before the High Court? (2) Whether the conditions in Section 37 of the NDPS Act for granting bail have over-riding effect on the proviso to section 167(2) of the Code of Criminal Procedure (for short the CodeT)?

(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 Inspector1 Balakrishnan, J. held that Section 37 of the NDPS Act does not override Section 167 of the Code. But correctness of the said decision has been doubted by Ramakrishna, 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. 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 promise that power of the High Court under Section 389 of the Code is saved by the operation of Section 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 Section 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 Section 37 of the NDPS Act.

(3.) In Cri. 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 Cr1. M.C. No. 1155/91, petitioner challenges the order of the Sessions Judge dismissing his application for bail on the ground that proviso to Section 167(2) of the Code is not applicable. Thulasidas, J. doubted the correctness of the decisions in Phasalu v. State of Kerala (supra) 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. , petitioner is a convicted accused who filed an appeal against his conviction and sentence before this Court. He prays for suspensionthe execution of sentence passed against him. In Cr1. M.C. No. 1155/91, petitioner challenges the order of the Sessions Judge dismissing his application for bail on the ground that proviso to Section 167(2) of the Code is not applicable. Thulasidas, J. doubted the correctness of the decisions in Phasalu v. State of Kerala (supra) 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.