Criminal Appln. No. 535 of 1997 In Cri Appeal No. 13 of 1997 with Cri Writ Petn. No. 83 of 1997. Case: Mohd. Ismail and etc Vs State of Maharashtra and another. High Court of Bombay (India)
| Case Number | Criminal Appln. No. 535 of 1997 In Cri Appeal No. 13 of 1997 with Cri Writ Petn. No. 83 of 1997 |
| Counsel | For Appellants: H. Ahmed and Shri Somalkar, Advs. and For Respondents: K. S. Dhote, A.P.P. and S. Y. Deopujari, A.P.P. |
| Judges | M. B. Ghodeswar, J. and S. P. Kulkarni, J. |
| Issue | Narcotic Drugs and Psychotropic Substances Act (61 of 1985) - Section 32A; Criminal Procedure Code (2 of 1974) - Section 389 |
| Citation | 1998 CriLJ 136 |
| Judgement Date | July 17, 1997 |
| Court | High Court of Bombay (India) |
Judgment:
S. P. Kulkarni, J., (Nagpur Bench)
-
In its legislative appearance, since 1989, S. 32-A of the Narcotic Drugs and Psychotropic Substances Act found it difficult to overcome its vulnerability in the Courts of law and it often allowed legal battles to be fought over the subject of ascertaining its true meaning, and also about what it precisely spoke.
It could not easily protect itself from being misunderstood or stoutly protect itself from being chosen as a target worth shooting at.
-
Before us, in the present proceedings, a question that has been posed is as to whether the High Court, while entertaining an appeal against the conviction under the NDPS Act has the same power available to it under S. 389, Cr. P.C. to allow suspension of a sentence during the pendency of such appeal and to release the appellant/accused on bail. As a further corollary of this main issue, we have been required to record our observations as to on what occasions power of suspending sentence awarded under that Act would be available to the Appellate Court viz. the High Court.
-
Before we set ourselves to the task in the hand we must express the advantage we had of certain logic employed in the process, in deciding similar controversy posed before the various High Courts. We noticed that there could not be unanimity in the judicial opinions expressed on the point. The High Court of Kerala was required to constitute a full Bench to settle this controversy and opined that the High Court had no such power of suspension in cases other than the sentences awarded to a convict under S. 27 of the NDPS Act. Few years later, the High Court of Gujarat, when faced with a similar controversy, through its full bench observed that the High Courts full powers under S. 389, Cr. P.C. are not at all affected by virtue of S. 32-A of the NDPS Act, which, in the opinion of the Full Bench, aimed at restricting the power of the Executive Government not to suspend, remit or commute sentences of those found guilty under the NDPS Act.
-
We may respectfully enumerate various decisions of the High Courts which have been cited before us to persuade us to come to a conclusion that the High Court's power under S. 389, Cr. P.C. in relation to the offences under the NDPS Act remained unaffected inspite of the introduction of S. 32-A into the NDPS Act by the amendment of 1989. On behalf of the State of Maharashtra, the learned Additional Public Prosecutor contended that S. 32-A did not merely restrict the power to suspend etc. the sentences by the Executive Government alone, but also by the High Court. In support of these respective contentions in the main, the logic that has been applied in the various decisions have been respectively advanced on both the sides. We, therefore, respectfully enumerate the decisions from which we had the advantage in approaching the problem with certain amount of a material, available for the advancement of the task before us:-
(1) Jyotiben Ramlal Purohit v. State of Gujrat (1997 Cri LJ 1549) (FB).
(2) Burlin Joseph v. State (1992 Drug Cases 98 (Kerala) (FB)).
(3) Oliver Fernandeo v. Assistant Collector of Madras (1990 Drug Cases 362 (Madras).
(4) Gyan Chand v. State of Rajasthan (1993 Criminal Law Journal 422) (Raj)).
(5) Sitasingh v. State of Punjab, (1995) 2 Crimes 876: (1995 Cri LJ 1733) (P and H).
-
There is also a reference made to some of the decisions of the Supreme Court as regards the general principles of interpretation and how, on certain occasions, having regard to the other provisions of the statute, the controlability of the non-obstante clause came to be considered in the context of the operation of other expressed provisions of a statute. In certain cases, the controlling power of non-obstante clause came to be ascertained to be such as not to control or restrict other expressed provisions of a statute. However, the extent to which the non-obstante clause in a particular provision operates is, thus, determinable by the rest of the provisions of a statute and that the legislative intention is at times disclosed to be such as not to restrict or check something which is expressly provided under the Act to be done than by the generality of non-obstante clause. A statutory situation may some time present a picture to interprete such non-obstante clause in a manner that the operation and the effect of such expressed provision, having been positively made, could not be supposed to have been controlled by the non-obstante clause which, on certain occasions, also came to be considered as not a part of a statute, but the clause having been used in a particular provision by way of abundant caution. Keeping these principles in our minds, we first proceed to examine the relevant provisions of the NDPS Act as well as the Code of Criminal Procedure, if need be, to ascertain if S. 32A is aimed at covering suspension, etc. of sentences awarded under the Act by the executive Government in the manner of Ss. 432 and 433, Cr. P.C. alone, or it envisages to control even any action, whether before the executive Government or before the Court wherefrom the question of suspension of sentences of...
To continue reading
Request your trial