KANTILAL JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an application to suspend the sentence and to release the petitioner on bail pending disposal of C.A. No. 921 of 1989. The petitioner has been convicted under Sections 8(c) and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter called the Act, in S.C. No. 209 of 1989 by the Additional Sessions Judge, Madurai on 13-11-1989 and sentenced to undergo imprisonment for a term of ten years' rigorous imprisonment and to pay fine of Rs. 1, 00, 000/- in default whereof to undergo imprisonment for two more years. As against the said conviction and sentence the petitioner has filed C.A. No. 921 of 1989 and the same is pending before this Court. The petitions filed earlier in Cr. M.Ps. 15294/89 and 255/90 for the suspension of the sentence and for bail have been dismissed by this Court and the petitioner has come forward with the above criminal miscellaneous petition again for the suspension of the sentence and for bail pending disposal of C.A. No. 921 of 1989.

(2.) MR. P. Rajamanickam, learned Central Government Public Prosecutor, opposed the application contending that after the introduction of amendment to the Act by the Act II of 1989 the power of the High Court is restricted in granting bail by Section 37 of the Act. He further contended that the restrictions imposed by Section 37 will also apply to the release of convicted persons on bail under Section 389 of the Code of Criminal Procedure, hereinafter called the Code, pending their appeal against conviction. On the other hand, MR. G. Gopalswamy, learned counsel for the petitioner con tended that the powers of the High Court under Sections 439 and 389 of the Code are absolute and they are not curtailed by Section 37 of the Act. The learned counsel for the petitioner further contended that Section 32A of the Act is not a bar to the High Court exercising its powers in the matter of granting suspension of sentence and bail pending disposal of appeal as the powers of suspension and bail under Section 389 of the Code are preserved by Section 36B of the Act. In support of his contention, learned counsel relied on the order inP.T. Oliver Fernandov. Assistant Collector of Madras[1990 (2) MWN (Crl.) 217 = 1990 L.W. (Crl.) P. 357].

(3.) SUBSEQUENTLY, the Apex Court inNarcotics Control Bureauv. Kishan Lal & Others[1991 L.W. (Crl.) 53 =1991 AIR(SC) 558, 1991 (1) CRIMES 467, 1991 CAR 114, 1991 (97) CRLJ 654, 1991 CrLR(SC) 178, 1991 (52) ELT 328, 1991 (1) JT 258, 1991 (1) Scale 97, 1991 (1) SCC 705, 1991 SCC(Cr) 265, 1991 (1) SCR 139, 1991 (2) UJ 121, 1991 CRLR 178, 1991 (1) KLT 547, 1991 AIR(SCW) 339(SC)] held that the powers of the High Court to grant bail under Section 439 of the Code are subject to the limitations contained in Section 37 of the Act. Their Lordships of the Supreme Court have held as follows :-" *