JALALUDEEN A Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an application for suspension of the sentence and release of the petitioner on bail during the pendency of the appeal. The petitioner/appellant is found guilty under Section 21(c) of the NDPS Act and convicted thereunder and sentenced to undergo R.I. for ten years and to pay a fine of Rupees One lakh with default sentence of payment of fine, a further period of R.I. for three years by the trial Court.

(2.) This application is opposed by the special counsel appearing for and on behalf of the respondent, Narcotic Control Bureau. Trivandrum. This Court heard the counsel appearing for the petitioner as well as the special counsel appearing for the other side. Two questions arc raised before this Court, namely to what extent the power of this Court under Section 389 of the Code of Criminal Procedure for issuing any interim order while statutory appeal is admitted or pending can be exercised Secondly, as per the provisions of Section 32A and Section 37 of the NDPS Act, 1985, can the power of this Court be restrained in granting bail to the petitioners The learned Counsel appearing for the petitioner submits that the trial Court had committed serious error in appreciating the evidence adduced by the prosecution to find the appellant guilty under Section 21(c) of the NDPS Act as the prosecution had failed to prove that the contraband article seized from the petitioner is of commercial quantity as described under the provisions of the Act. To substantiate this contention, the learned Counsel submits that it is admitted by P.W. 5, the investigating officer that the exact weight of the substance seized from the appellant has not been correctly weighed as the substance was weighed along with the polyethene bag in which the same was kept. Secondly the counsel submits that the petitioner was on bail through out the trial namely for more than three years and there was no instance reported that the petitioner violated any of the conditions prescribed in the bail order or tried to repeat the offence alleged against him. The learned special counsel appearing for the respondent submits in the light of the Judgment of the Apex Court reported in Union of India v. Mahaboob Alam, 2004 4 SCC 105that if a person is guilty of an offence committed under the provisions of the NDPS Act, as per the restrictions contained in Section 32A and Section 37 of the Act, the Court cannot grant bail to such person. The learned Counsel also relied on a judgment of the Apex Court Dadu v. State of Maharashtra, 2000 8 SCC 437 where the Apex Court had considered the issue and had taken the view that "though the Court has got the power of granting bail in spite of Section 32A, the same should be done only and strictly subject to the conditions spelt out in Section 37 of the Act". The learned special counsel further invited the attention of this Court to a judgment reported in 2005 Drug Cases (Narcotics) 44 of the High Court of Rajasthan in Shakil Ahmed v. State of Rajasthan where the Rajasthan High Court had taken the view that the power of the appellate Court to grant bail and suspend the sentence to an accused, who was already found guilty by the trial Court, shall be exercised only within the parameters of Section 37 of the Act. To the above contention, the learned Counsel appearing for the petitioner placed reliance on the judgment of the Apex Court reported in Dadu v. State of Maharashtra, 2000 8 SCC 437 (cited supra). In the above judgment, the Apex Court also considered the power of the appellate Court envisaged under Section 389 of the Code of Criminal Procedure vis-a-vis with Section 32A and Section 37 of the NDPS Act 1985. In Paragraph 17 of that judgment, the Apex Court observed as follows:

(3.) On considering the rulings of the Apex Court and the facts placed before this Court, this Court is of the view that the application can be considered and appropriate order can be passed. The petitioner is found guilty under Section 21(c) of the NDPS Act and he was convicted thereunder. But, it is come out in evidence that the petitioner was on bail through out the trial namely more than three years and no report of any repetition or an attempt of the offence has been reported.