GRIRAJ Vs. STATE OF M P

JUDGEMENT

(1.) Convict-appellant Giriraj (hereinafter called "the accused") by judgment dated 13.9.1991 in ST No. 230 of 1990 delivered by the first Additional Sessions Judge, Neemuch, District Mdsaur has been convicted under sections 8/18 of the Narcotic Drugs and Psychotropic Substances. Act, 1985 (hereinafter called the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lac, in default of payment of fine, further rigorous imprisonment for two years. By this application under section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter called the Code) read along with section 36B of the Act pray for suspension of execution of sentence and release on bail.

(2.) As the hearing of the application Shri Brijesh Pandya learned Counsel for the, accused, relying on order dated 25.3.199 1 in criminal Appeal No. 65 of 1991, Rameshwar v. The State passed by a Single Judge of this Court (Honble Shri M.W. Dec, J.) submitted that in spite of newly introduced section 32A in the Act, it was competent for this Court to order suspension of execution of sentence even in case of conviction for an offence other than under section 27 of the Act. For the same purpose he also relied on a decision of Madras High Court in Kantilal Jam and others v. Assistant Collector (CIU), Madurai and others and opinion of third Judge in Phasalu v. State of Kerala, on difference between the Judges of Division Bench of the same High Court which was reported in 1992 (1) BFR 224. This decision had taken the same view as that at Madras High Court already referred to above.

(3.) Shri Girish Desai the then Panel lawyer representing the State however strongly opposing the contentions of by Shri Pandya submitted that unlike section 432 of the Code, section 32A of the Act had words of general import and there is nothing therein to show that it is to apply to appropriate Government, as is specifically mentioned in section 432 of the Code. In absence of reference to appropriate Government in this section, it would apply also to this Court for conviction of offences other than section 27 of the Act, while considering the application for suspension of execution of sentence under section 389 (1) of t the Code. In support of his contention Shri Desai referred to a decision of Supreme Court in Narcotics Control Bureau v. Kishanlal and other, which holds that High CourtTs power under section 439 of the Code to grant bail is subject to limitations under section 37 of the Act and the I limitation is applicable to the High Court. He also referred to Ishwarsingh M. Rajput v. State of Gujarat.