Patna High Court
Shivam Gaud vs The Union Of India ( D. R. I. ) on 29 August, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1315 of 2017
Arising Out of PS.Case No. -8 Year- 2009 Thana -GOVERNMENT OFFICIAL COMP. District-
MUZAFFARPUR
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SHIVAM GAUD, SON OF JAI RAM GAUD, RESIDENT OF VILLAGE-
GORIYANA TOLA, ASHRAM ROAD, P.O. + P.S. NARWAL, DISTRICT-
KANPUR (U.P.).
.... .... APPELLANT/S
VERSUS
THE UNION OF INDIA ( D. R. I. ) .... .... RESPONDENT/S
WITH
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Criminal Appeal (SJ) No. 1326 of 2017
Arising Out of PS.Case No. -8 Year- 2009 Thana -GOVERNMENT OFFICIAL COMP. District-
MUZAFFARPUR
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BAGWATI PRASAD AGNIHOTRI, SON OF TEJ NARAYAN AGNIHOTRI,
RESIDENT OF VILLAGE + P.O.- DUWARI, P.S. GAJNER, DISTRICT-
KANPUR (U.P.).
.... .... APPELLANT/S
VERSUS
THE UNION OF INDIA ( D. R. I. ) .... .... RESPONDENT/S
WITH
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Criminal Appeal (SJ) No. 1836 of 2017
Arising Out of PS.Case No. -20 Year- 2015 Thana -GAYA GRP CASE District- GAYA
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VIKASH KUMAR SINHA SON OF VIJAY KUMAR SINHA, RESIDENT OF
MOHALLA- NAI GODAM, P.S.- KOTWALI, DISTRICT- GAYA.
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR .... .... RESPONDENT/S
WITH
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Criminal Appeal (SJ) No. 1577 of 2017
Arising Out of PS.Case No. -205 Year- 2007 Thana -GOGRI District- KHAGARIA
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MAHESH SHARMA SON OF JANARDAN SHARMA, RESIDENT OF
VILLAGE-RAMPUR, P.S. GOGRI DISTRICT KHAGARIA.
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR .... .... RESPONDENT/S
WITH
===========================================================
Criminal Appeal (SJ) No. 1686 of 2017
Arising Out of PS.Case No. -136 Year- 2015 Thana -ARA NAGAR District- BHOJPUR
Patna High Court CR. APP (SJ) No.1315 of 2017 dt.29-08-2017 2
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CHHATHU PASWAN, SON OF LATE SHRI BHAGWAN RAM, RESIDENT OF
MOHALLA- GAUSHGANJ, P.S.- ARA TOWN, DISTT- BHOJPUR.
.... .... APPELLANT/S
VERSUS
THE STATE OF BIHAR .... .... RESPONDENT/S
===========================================================
Appearance:
(In CR. APP (SJ) No.1315 of 2017)
For the Appellant/s : Mr. Nachiketa Jha, Adv.
For the Union of India : Mr. Ram Anurag Singh, CGC
(In CR. APP (SJ) No.1326 of 2017)
For the Appellant/s : Mr. Nachiketa Jha, Adv.
For the Union of India : Mr. Ram Anurag Singh, CGC
(In CR. APP (SJ) No.1836 of 2017)
For the Appellant/s Mrs. Prem Sheela Pandey, Adv.
For the Respondent/s : Mr. Abhay Kumar, APP
(In CR. APP (SJ) No.1577 of 2017)
For the Appellant/s : Mr. Mrityunjay Kumar, Adv.
For the Respondent/s : Mr. Zeyaul Hoda, APP
(In CR. APP (SJ) No.1686 of 2017)
For the Appellant/s : Mr. Ravindra Kumar, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
C.A.V ORDER
Date: 29-08-2017
1. As common legal question is found in relating to
Criminal Appeal (SJ) No.1315 of 2017, Criminal Appeal (SJ) No.
1326 of 2017, Criminal Appeal (SJ) No. 1836 of 2017, Criminal
Appeal (SJ) No. 1577 of 2017 and Criminal Appeal (SJ) No. 1686 of
2017 hence, taken up conjointly, and in likewise manner, are being
disposed of.
2. These appeals have already been admitted. During
intermediary event, a prayer for bail has been made on behalf of
respective appellant by way of suspending sentence till pendency of
these appeals as provided under Section 389(1) of the Cr.P.C. Heard
learned counsel for the respective appellant as well as learned counsel
representing the Union of India (DRI) as well as learned Additional
Patna High Court CR. APP (SJ) No.1315 of 2017 dt.29-08-2017 3
Public Prosecutor.
3. Learned counsel for the respective appellant has
submitted that there happens to be no barrier in exercising power by
the appellate court vested in terms of Section 389(1) of the Cr.P.C. to
release the appellant on bail by way of suspending sentence till
pendency of respective appeal.
4. The learned counsel representing the Union of India
(DRI) as well as learned Additional Public Prosecutor submits that in
terms of Section 32A of the NDPS Act respective appellant would
not be released on bail on account of prohibition prescribed
thereunder by way of forbidding the appellate court to sterile the
sentence during pendency of the appeal.
5. Section 32A of the NDPS Act reads as follows:
"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 27) shall be suspended or remitted or
commuted."
6. First of all the aforesaid issue came up for
consideration before the Hon‟ble Apex Court in Maktool Singh v.
State of Punjab reported in 1999 CRI.L.J 1825 wherein after
discussing the relevant provisions as well as earlier judicial
pronouncement of different High Courts, it has been concluded under
Patna High Court CR. APP (SJ) No.1315 of 2017 dt.29-08-2017 4
para-24 as follows:
"24. The upshot of the above discussion is that
Section 32A of the Act has taken away the
powers of the court to suspend a sentence passed
on persons convicted of offences under the Act
(except Section 27) either during pendency of
any appeal or otherwise. Similarly, the power of
the Government under Section 432, 433 and 434
of the Criminal Procedure Code have also been
taken away. Section 32A would have an
overriding effect with regard to the powers of
suspension, commutation and remission
provided under the Criminal Procedure Code."
7. The aforesaid judgment came up for consideration by
the three Judges Bench in Dadu alias Tulsidas etc. v. State of
Maharashtra reported in 2000 CRI.L.J. 4619 wherein the matter
has been considered in detail and part of prohibition having
prescribed under Section 32A of the Act relating to remission to be
allowed by the executive was held to be intra-virus while prohibition,
in exercise of appellate powers has been declared ultra-virus subject
to rigor so prescribed under Section 37 of the Act. For better
appreciation the relevant para is quoted below:
"25. Judged from any angle, the section insofar as it
completely debars the appellate courts from the power
to suspend the sentence awarded to a convict under the
Act cannot stand the test of constitutionality. Thus
Section 32-A insofar as it ousts the jurisdiction of the
court to suspend the sentence awarded to a convict
under the Act is unconstitutional. We are, therefore, of
the opinion that the Allahabad High Court in Ram
Charan case (Supra) has correctly interpreted the law
relating to the constitutional validity of the section and
the judgment of the Gujarat High Court in Ishwar Sinh
M. Rajput case cannot be held to be good law.
26. Despite holding that Section 32-A is
unconstitutional to the extent it affects the functioning
of the criminal courts in the country, we are not
Patna High Court CR. APP (SJ) No.1315 of 2017 dt.29-08-2017 5
declaring the whole of the section as unconstitutional in
view of our finding that the section, insofar as it takes
away the right of the executive to suspend, remit and
commute the sentence, is valid and intra vires of the
Constitution. The declaration of Section 32-A to be
unconstitutional, insofar as it affects the functioning of
the courts in the country, would not render the whole of
the section invalid, the restriction imposed by the
offending section being distinct and severable.
27. Holding Section 32-A as void insofar as it takes
away the right of the courts to suspend the sentence
awarded to a convict under the Act, would neither
entitle such convicts to ask for suspension of the
sentence as a matter of right in all cases nor would it
absolve the courts of their legal obligations to exercise
the power of suspension of sentence within the
parameters prescribed under Section 37 of the Act.
Section 37 of the Act provides:
"37. Offences to be cognizable and non-
bailable.--(1) Notwithstanding anything contained
in the Code of Criminal Procedure, 1973--
(a) every offence punishable under this Act
shall be cognizable;
(b) no person accused of an offence punishable
for a term of imprisonment of five years or more
under this Act shall be released on bail or on his
own bond unless--
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not
guilty of such offence and that he is not likely
to commit any offence while on bail.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure,
1973 or any other law for the time being in force on
granting of bail."
28. This Court in Union of India v. Ram Samujh held
that the jurisdiction of the court to grant bail is
circumscribed by the aforesaid section of the Act. The
bail can be granted and sentence suspended in a case
where there are reasonable grounds for believing that
the accused is not guilty of the offence for which he is
convicted and he is not likely to commit any offence
while on bail and during period of suspension of the
Patna High Court CR. APP (SJ) No.1315 of 2017 dt.29-08-2017 6
sentence. The Court further held: (SCC pp. 431-32,
paras 6-8)
"6. The aforesaid section is incorporated to
achieve the object as mentioned in the Statement of
Objects and Reasons for introducing Bill No. 125 of
1988 thus:
„Even though the major offences are non-
bailable by virtue of the level of punishments, on
technical grounds, drug offenders were being
released on bail. In the light of certain difficulties
faced in the enforcement of the Narcotic Drugs
and Psychotropic Substances Act, 1985, the need
to amend the law to further strengthen it, has been
felt.‟
(emphasis supplied)
7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a murder
case, the accused commits murder of one or two
persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death or in
inflicting death-blow to a number of innocent young
victims, who are vulnerable; it causes deleterious
effects and a deadly impact on the society; they are a
hazard to the society; even if they are released
temporarily, in all probability, they would continue
their nefarious activities of trafficking and/or dealing
in intoxicants clandestinely. Reason may be large
stake and illegal profit involved. This Court, dealing
with the contention with regard to punishment under
the NDPS Act, has succinctly observed about the
adverse effect of such activities in Durand Didier v.
Chief Secy., Union Territory of Goa as under: (SCC
p. 104, para 24)
„24. With deep concern, we may point out that
the organised activities of the underworld and the
clandestine smuggling of narcotic drugs and
psychotropic substances into this country and
illegal trafficking in such drugs and substances
have led to drug addiction among a sizeable
section of the public, particularly the adolescents
and students of both sexes and the menace has
assumed serious and alarming proportions in the
recent years. Therefore, in order to effectively
control and eradicate this proliferating and
booming devastating menace, causing deleterious
effects and deadly impact on the society as a
whole, Parliament in its wisdom, has made
Patna High Court CR. APP (SJ) No.1315 of 2017 dt.29-08-2017 7
effective provisions by introducing this Act 81 of
1985 specifying mandatory minimum
imprisonment and fine.‟
8. To check the menace of dangerous drugs
flooding the market, Parliament has provided that the
person accused of offences under the NDPS Act
should not be released on bail during trial unless the
mandatory conditions provided in Section 37,
namely,
(i) there are reasonable grounds for believing
that the accused is not guilty of such offence; and
(ii) that he is not likely to commit any offence
while on bail
are satisfied."
29. Under the circumstances the writ petitions are
disposed of by holding that:
(1) Section 32-A does not in any way affect the
powers of the authorities to grant parole.
(2) It is unconstitutional to the extent it takes
away the right of the court to suspend the sentence of
a convict under the Act.
(3) Nevertheless, a sentence awarded under the Act can
be suspended by the appellate court only and strictly
subject to the conditions spelt out in Section 37 of the
Act, as dealt with in this judgment."
8. In Noor Aga v. State of Punjab & Anr. reported in
(2008) 16 SCC 417 it has been held:
"25. Section 39 provides for the power of the court to
release certain offenders on probation. We may notice
that the restrictions on the power of the court to suspend
the sentence as envisaged in Section 39 (sic Section 32-
A) of the Act have been held to be unconstitutional in
Dadu v. State of Maharashtra(2000(8) SCC 437,
subject, of course, to the restrictions for grant of bail as
contained in Section 37 of the Act."
9. In Ratan Kumar Vishwas v. State of U.P. & Anr.
reported in 2009(1) PLJR 115 (SC) it has been held:
"14. It is to be noted that in Dadu v. State of
Maharashtra (2000) 8 SCC 437 it was held that Section
32-A was ultra vires to the extent it took away the
powers relatable to Section 389 of the Code of Criminal
Patna High Court CR. APP (SJ) No.1315 of 2017 dt.29-08-2017 8
Procedure, 1973 (in short "the Code"). In Dadu
case(2000(8) SCC 437 it was held as follows: (SCC p.
456, para 29)
"29. Under the circumstances the writ petitions
are disposed of by holding that:
(1) Section 32-A does not in any way affect
the powers of the authorities to grant parole.
(2) It is unconstitutional to the extent it takes
away the right of the court to suspend the
sentence of a convict under the Act.
(3) Nevertheless, a sentence awarded under the Act can
be suspended by the appellate court only and strictly
subject to the conditions spelt out in Section 37 of the
Act, as dealt with in this judgment."
10. That being so, it has become crystal clear that appellate
court has been held empower to exercise its power subject to
limitation so prescribed under Section 37 of the Act.
11. Now coming to facts of individual appeals, it is evident
that appellant of Criminal Appeal (SJ) No.1315 of 2017 as well as
Criminal Appeal (SJ) No.1326 of 2017 were arrested while carrying
54 kg. of charas through truck bearing registration no.UP78BD 3149.
It happens to be more than commercial quantity and on account
thereof, their prayer for bail is rejected.
12. So far appellant of Criminal Appeal (SJ) No.1836 of
2017, namely, Vikash Kumar Sinha is concerned, he has been found
in possession of 5 kg. of Ganja which happens to be more than small
quantity but lesser than commercial quantity. In likewise manner
appellant of Criminal Appeal (SJ) No. 1577 of 2017, namely, Mahesh
Sharma is concerned he has been found in possession of 1.400 gm.
Patna High Court CR. APP (SJ) No.1315 of 2017 dt.29-08-2017 9
Ganja which also happens to be more than small quantity but lesser
than commercial quantity and on account thereof, their prayer for bail
are rejected at present with a condition that if appeal is not taken up
for hearing within one and half year then, in that event, they will be at
liberty to renew their prayer for bail.
13. So far appellant of Criminal Appeal (SJ) No. 1686 of
2017 is concerned, he was found in possession of 20 gm of heroine,
again more than small quantity but lesser than commercial quantity
whereupon, prayer for bail at the present moment is rejected subject
to condition that in case appeal is not taken up for hearing within one
and half year then in that circumstance, appellant will be at liberty to
renew his prayer for bail.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE 22.08.2017,
19.08.2017
Uploading Date 29.08.2017 Transmission 29.082017 Date