BHARATSINGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS application is under Section 389 of Code of Criminal Procedure (for short, 'the Code') for suspension of sentence and grant of bail to the appellant/accused who was convicted along with another for the offence punishable under Section 20(b)(i) to Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the N.D.P.S. Act) and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/ -, in default to undergo rigorous imprisonment for a period of two months.

(2.) THE appeal was admitted. The learned Counsel for the appellant, Mrs. Sirpurkar, contended that with due regard to the facts and circumstances of the case as is disclosed from the judgment, the sentence awarded to the appellant is liable to be suspended and the appellant is entitled to be released on bail. The learned Additional Public Prosecutor Mr. Wahane, on the other hand maintained that in view of Section 32A of N.D.P.S. Act, such suspension of sentence under Section 389(1) of the Code is not permissible. The learned Counsel for the appellant relied on the Division Bench judgment of Madras High Court in Kantilal Jain and Ors. v. Asstt. Collector, Madurai 1991 L.W. (Cri.) 563 and the decision of Madhya Pradesh High Court in the case of Giriraj v. State of M.P. 1 (1995) CCR 547 . On the other hand, the learned Additional Public Prosecutor relied on the Full Bench decision of Kerala High Court in the case of Berlin Joseph @ Ravi v. State 1992 (1) Crimes 1221 in support of his argument that Section 32A of N.D.P.S. Act is a bar for this Court in exercising the power under Section 389(1) of the Code.

(3.) BEFORE going into the acceptability of the rival contentions, it will be necessary to read Section 32A of N.D.P.S. Act, which is as under: