MURUGANANDAM Vs. STATE

JUDGEMENT

(1.) A learned Single Judge of this Court, by his order dated 29.7.93, in this petition, issued directions to the Registry, to put up these papers before the Honourable the Chief Justice for his orders, to place the matter before a Full Bench, to decide the point whether the High Court can or cannot, in view of Section 32 -A of the Narcotic Drugs and Psychotropic Substances Act, suspend the sentence awarded in this case under Section 21 of the Act, in exercise of its power under Section 389, Code of Criminal Procedure and for further disposal of the petition.

(2.) THE Honourable the Chief Justice, administratively observed, on 26.9.94, that a single Judge cannot refer a case to a Full Bench and therefore the order can be construed as one referred to a Division Bench. Accordingly, it was ordered, that this petition be placed before us for decision. Meanwhile, the Bar Association, through its President, brought to the notice of the Honourable the Chief Justice, that suspensions of sentences, pending appeals, in cases arising out of the Narcotic Drugs and Psychotropic Substance Act, were not being ordered in view of the decision of another single Judge of this Court in Nagalingam v. Assistant Collector of Customs and Excise : (1993 L.W.(Crl.) 534) stating as hereunder: By scanning and following the above case laws, I am able to identify that Courts of law have differed in their opinion in giving reasons for arriving at such conclusion, but however, they are all unanimous in the conclusion that no sentence awarded for the offences under the N.D.P.S. Act can be suspended, remitted or commuted during the pendency of the appeal or revision. While so observing, the said learned Judge, was of the firm view, that reference, made by another learned single Judge, of this petition, for consideration of a Full Bench, was of no consequences. The said request of the Bar Association was also placed before us, so that an authoritative pronouncement could be rendered by a Division Bench of this Court, on the feasibility of suspension of sentence, pending appeal, in convictions arising out of offences punishable under the Narcotic Drugs and Psychotropic Substances Act.

(3.) EVEN at the outset, we must plainly state, that two different Division Benches of this Court have taken the view, that Section 32A of the Act was not a bar for the High Court exercising its powers, in the matter of granting suspension of sentence and bail, pending disposal of appeal and that the powers of suspension under Section 389 of Code of Criminal Procedure stood preserved by Section 36 -B of the Act. It was further stated by those Division Benches, that Section 32 -A can refer only to the Government and not to Courts. It was also observed by both the Division Benches, that the limitations contained in Section 37 of the Act will have to be borne in mind by the High Court, while suspending the sentence and enlarging the accused on bail. In other words, the High Court will have to bear in mind the object of the Act and it should exercise its power with great care and caution so that the very object of the Act was not defeated. The verdict of the first Division Bench is available in Oliver Fernando P. T. v. Assistant Collector of Madras, (1990 L.W.(Crl.3577) The Second Division Bench in Kantilal Jain v. Asst. Collector, C.I.U. Madurai, (1991 L.W.(Crl.)563) , on the question, "Whether the provisions contained in Section 32 -A of the Act is a bar for the High Court exercising its power in the matter of granting suspension of sentence and bail pending disposal of the appeal", stated, that they were in respectful agreement with the view expressed by the earlier Division Bench, to that question and that Section 32 -A of the Act was not a bar for the High Court exercising its power in the matter of granting suspension of sentence and bail, pending disposal of an appeal and that powers of suspension under section 389 of the Code of Criminal Procedure were preserved by Section 36 -B, of the Act. They further stated that Section 32 -A will refer only to the Government and not to the courts. It went on to add, that the powers of the High Court in the matter of granting suspension of sentence and bail pending disposal of an appeal, under Section 389 of the Code, are also subject to the restrictions contained in Section 37 of the Act.