Rajasthan High Court - Jaipur
Gyan Chand vs The State Of Rajasthan on 27 July, 1992
Equivalent citations: 1993CRILJ422
ORDER B.R. Arora, J.
1. Petitioner Cyan Chand was convicted and sentenced by the learned Sessions Judge, Jaisalmer, for the offence under Section 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 Section 32A 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 Section 389, Cr. P.C. for suspension of sentence during the pendency of the appeal, have been taken away by Section 32A of the Act or they have been preserved by Section 36B of the Act? Section 32A and Section 36B of the Act are two provisions in the Act, which deal with the powers regarding suspension of sentence and read as under:-
"Section 32A. No suspension, remission or commutation in any sentence awarded under this Act - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than Section 77) shall be suspended or remitted or commuted".
"Section 36B. Appeal and revision. - The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974) or a High Court as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court."
Section 32A of the Act starts with a non obstante clause and provides that no sentence awarded under the Act, other than Section 37, shall be suspended, remitted and commuted, while Section 36B of the Act empowers the High Court, during pendency of the appeal or revision, to exercise all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure. These two sections, though they appear in the same Act are repugnant. According to Law of Interpretation, if the statute contains two provisions, which are repugnant then every effort should be made to reconcile the two provisions. In case they cannot be reconciled with each other then they should be so interpreted that if possible, the effect should be given to both the provisions and a construction, which renders the provision redundant, nugatory or superfluous, should be avoided by adopting the rule of harmonious construction. Legislature can never be supposed to have intended to contradict itself by enacting two conflicting provisions in the same statute and the Courts are, therefore, supposed to construe the language of the legislature in such a way so that the repugnancy can be avoided. There are two ways, by which such conflict can be resolved. One way, in which the repugnancy can be avoided, is by regarding the two conflicting provisions as dealing with distinct matters or situation or vesting powers with two different authorities. Collision can, also, be avoided by holding that one Section, which is conflicting the other, merely provides for an exception from a general rule contained in that of other. Maxwell, in his Book on the Interpretation of Statutes, stated on the rule of statutory co-existence, as follows :-
"It is sometimes found that the conflict of two statutes is apparent only, as their objects are different and the language of each is to be restricted to its own object or subject. When their language is so confined they run in parallel lines without meeting."
In the light of this rule of statutory coexistence, we have to see; whether both the provisions can co-exist or not? For the interpretation of these provisions, it is necessary to see the corresponding relevant provisions in the Code of Criminal Procedure.
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 Section 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 Sections 432 and 433, Cr. P.C. and the powers of the appellate Court to suspend the sentence under Section 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 Section 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 Sections 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, Section 386, Cr. P.C. deals with the powers of the appellate Court. According to Section 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 Section 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 Section 389, Cr. P.C.
4. A close reading of Section 32A of the Act with Sections 432 and 433, Cr. P.C., clearly shows that Section 32A of the Act has been enacted with an intention to abrogate the powers of the appropriate government vested in it and not to curtail the powers of the High Court. Section 32A of the Act refers only to the appropriate government and not to the Court. By imposing a bar under Section 32A of the Act, the Parliament, in fact, intended to curtail the unlimited powers of the government to suspend, remit or commute the sentence, in order to avoid political interference in the way of curbing the notorious activities in drugs trafficing. Section 36B of the Act empowers the High Court, during the pendency of the appeal or revision, to exercise all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure. Section 389, Cr. P.C., which deals with the powers of suspension of sentence pending the appeal, finds place in Chapter XXIX of the Code of Criminal Procedure. The powers of the High Court regarding suspension of sentence under Section 389, Cr. P.C., are, thus, not curtailed by Section 32A of the Act, rather Section 32A of the Act does not deal with the power of the High Court but it deals with the powers of the appropriate Government only and has no connection whatsoever so far as the judicial powers of the High Court are concerned. The Legislature, by enacting Section 32A of the Act, never intended to take-away the judicial powers and the discretion of the High Court regarding suspension of sentence, and, in fact, has taken away the executive power of the State of suspension, remission or commutation. There is an essential difference between the exercise of judicial powers and the executive powers by the State. The power of the Court to suspend the sentence, is to be exercised on judicial consideration while the executive, in the exercise of the powers, do not necessarily act on the same principle and do not take the same matter under consideration. The Executive exercises the power on the ground that public good will be as well or better promoted by suspension as by the execution. The exercise of this power lies in the discretion of the authority, in whom it is vested. Both the provisions have to be harmonised so that there may not be any conflict between them and they can be harmonised without any difficulty, if Section 36B of the Act is held to be dealing-with the power of the appellate Court of suspension of sentence passed by the Court below during the pendency of the appeal while Section 32A of the Act, which puts restriction on the powers dealing with the powers of the appropriate Government regarding the suspension, remission or communtation of the sentence after conviction. This power of the State with respect to suspension, remission or commutation has been taken-away by Section 32A of the Act, while the judicial powers of the appellate Court under Section 36B of the Act have been preserved. Both these Sections, i.e, Section 32A and Section 36B of the Act, thus, do not operate in the same field and operate in different fields. Section 32A of the Act deals with the Executive powers of the appropriate Government while Section 36B of the Act deals with the judicial powers of the Courts. Even as per the Rule of Statutory Construction, if two Sections of the statute are repugnant in any way to the first, the latter provision will prevail, for it stands last in the enactment and speaks the last intention of the makers. Even on this Statutory Rule of Interpretation, powers under Section 389, Cr. P.C. of the appellate Court regarding suspension of sentence, have been preserved by Section 36B of the Act, as it appears that Section 32A of the Act and both the provisions were enacted together.
5. The next question, which requires consideration is : whether the powers under Section 389, Cr. P.C., which have been preserved by Section 36B of the Act, are unfettered or they are being controlled by any of the provisions of the Act? For considering this aspect of the case, the object, with which the Act has been enacted and the implication of Section 37 of the Act, have to be taken into consideration. The Act was enacted in order to eradicate the disastrous menace of the drugs abuse causing serious and deadly effect on the society as a whole and to effectively control the organized activities of the underworld, clandestine smuggling and illegal trafficking in the narcotic drugs and psychotropic substances, which have led to drug-addiction in the student and the young generation. Section 37 of the Act starts with non obstante clause and is couched in negative terms limiting the scope of the provisions of the Code of Criminal Procedure with respect to grant of bail by the High Court in the cases under the Act. Taking into account the object with which the provision has been enacted and the provisions of Section 37 of the Act, it is, thus, clear that the powers to grant bail under any of the provisions of the Code of Criminal Procedure are subject to the control of Section 37 of the Act. The restrictions placed under Section 37 of the Act are applicable to the High Court in the matter of granting bail, whether it is a case under Section 439 or under Section 389, Cr. P.C.
6. The resultant position is that the powers of the High Court in suspending the sentence during the pendency of the appeal, have not been taken away by Section 32A of the Act, but they have been preserved by Section 36B of the Act and the High Court can exercise its powers of suspending the sentence during the pendency of the appeal subject to the conditions and limitations mentioned in Section 37 of the Act.
7. Now, coming to the merit of the case. The appellant-petitioner was found in possession of opium. Keeping in view the object of the Act and the circumstances found against the appellant-petitioner by the trial Court, I do not think it a fit case in which the sentence passed by the learned lower Court may be suspended.
8. In the result, I do not find any merit in this miscellaneous application for suspension of sentence, filed by the petitioner, and the same is hereby dismissed.