GYAN CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Petitioner Gyan Chand was convicted and sentenced by the learned Sessions Judge, Jaisalmer, for the offence under S. 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act'). Aggrieved with the judgment, the petitioner preferred an appeal and, also, submitted an application for suspension of the sentence. This application for suspension of sentence was opposed by the learned Public Prosecutor on the ground that S. 32-A of the Act completely takes away the power of the High Court to suspend the sentence and as such the sentence awarded by the learned trial Court cannot be suspended during the pendency of the appeal.

(2.) The controversy involved in the present case is : whether the powers of the High Court under S. 389, Cr. P.C. for suspension of sentence during the pendency of the appeal, have been taken away by S. 32-A of the Act or they have been preserved by S. 36-B of the Act ? Section 32-A and S. 36-B of the Act are two provisions in the Act, which deal with the powers regarding suspension of sentence and read as under :-

(3.) Section 432 of the Code of Criminal Procedure deals with the powers of the appropriate government to suspend or remit the sentence when any person has been sentenced to punishment for an offence, while S. 433 of the Code of Criminal Procedure deals with the powers of the appropriate government to commute the sentence. Section 389 of the Code of Criminal Procedure deals with the powers of the appellate Court to suspend the sentence pending the appeal and to release the appellant on bail. There is an essential difference between the general powers of suspension, remission or commutation vested in the State Government under Ss. 432 and 433, Cr. P.C. and the powers of the appellate Court to suspend the sentence under S. 389, Cr. P.C. in criminal appeals, pending before the High Court. The first is an exclusively executive power vested in the appropriate government and the field covered by it is exclusively subject to the exercise of the said executive powers, while S. 389, Cr. P.C. deals with the judicial powers of the appellate Court to suspend the sentence during the pendency of the appeal. These are two separate powers - one is to be exercised by the judiciary and the other by the executive. So far as the powers of remission or commutation of any sentence awarded is concerned, these powers are not conferred upon the Court under the Code of Criminal Procedure but they along with the powers of suspension, have been conferred upon the appropriate government under Ss. 432 and 433, Cr. P.C. When no powers have been conferred upon the Courts regarding the remission or commutation then there is no question of taking away those powers by the Legislature. Moreover, it can never be the intention of the Legislature to give powers by one provision and to takeaway the same by another provision. The provisions of one Section of the statute can never be used to defeat those of another unless it is impossible to effect reconciliation between them. So far as the Courts are concerned, S. 386, Cr. P.C. deals with the powers of the appellate Court. According to S. 386, Cr. P.C., the appellate Court, in an appeal from conviction, can reverse the finding and sentence, and acquit or discharge the accused or order him to be re-tried or alter the finding maintaining the sentence, or with or without altering the finding, alter the nature or the extent, or the nature or the extent of sentence, but not so as to enhance the same. A close reading of the provisions of S. 386, Cr. P.C. clearly shows that there is no power of suspension, remission or commutation as such, conferred on the High Court, except to suspend the sentence temporarily pending the appeal, as postulated under S. 389, Cr. P.C.