Holding

Section 32A of the NDPS Act, by its non obstante clause, bars suspension, remission or commutation of any sentence awarded under the Act (except offences under Section 27) and prevails over Section 36B and the relevant CrPC provisions.

Summary

The appellant, Maktool Singh, challenged the conviction and sentence imposed under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, seeking suspension of the sentence pending appeal. The High Court refused suspension, prompting an appeal to the Supreme Court. The Court examined whether Section 32A of the NDPS Act, which prohibits suspension, remission or commutation of any sentence awarded under the Act (except offences under Section 27), overrides Section 36B of the Act and the corresponding provisions of the Criminal Procedure Code (CrPC) that empower courts to suspend sentences during appeal. It held that the non obstante clause in Section 32A gives it a sweeping overriding effect, rendering the High Court powerless to suspend the sentence, and that the provision also curtails the executive’s powers under Sections 432, 433 and 434 of the CrPC. The Court noted that the legislative intent was not merely to curb executive powers but to prevent any suspension of NDPS sentences, and that any difficulty arising from delayed appeals must be addressed by Parliament. Consequently, the appeal was dismissed.

Issues considered

Whether Section 32A of the NDPS Act overrides Section 36B of the Act and the CrPC provisions granting power to suspend a sentence during the pendency of an appeal.
Whether the High Court can exercise the power under Section 389 of the CrPC to suspend a sentence awarded under the NDPS Act.
Whether the legislative intent of Section 32A was limited to curbing executive powers under Sections 432 and 433 of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 389, s. 389(3), s. 432, s. 433, s. 434, s. Chapter XXIX, s. Chapter XXXII
Constitution of Indias. 161, s. 72
Narcotic Drugs and Psychotropic Substances Act, 1985s. 27, s. 32A, s. 36B, s. 37

Subjects

NDPS Actsentence suspensionSection 32ASection 36Bnon obstante clauseCriminal Procedure Codeappeal jurisdictionremissioncommutationhigh court powers

Judgment

)~

A MAKTOOL SINGH ~

v.
STATE OF PUNJAB

MARCH 17, 1999

B [K.T. THOMAS AND M.B. SHAH, JJ.)

Narcotic Drngs and Psychotropic Substances Act, 1985 :

Section 32-A, 36-B, 27 and 37-Bar in Section 32-A against suspension
of sentence passed on to accused (except Section 27}-0bject of-Held, was
c to curb not only the powers of the government under Sections 432 and 433 of
the CrPC but also the power of the High Court to suspend sentence-Criminal
Procedure Code, 1973, Sections 432 and 433-lnterpretation of Statutes--Ex-
temal aid-Statement of Objects and Reasons, taken into considera-
lion-Constitution of India, Articles 72 and 161.
D ¥
Sections 32-A and 36-B-f'owers of High Court .under Chapter XXIX
of CrPC preserved by Section 36-B of the Act-Scope of-Held, did not
include the power to suspend the sentence during the pendency of the ap- "'
peal-Criminal Procedure Code, 1973, Section 389, Chapter XXIX.

E Sections 32-A and 36-cB-lnterrelation between-Held, Section 32-A
overrides the provisions of Section 36-B-lnterpretation of Statutes-::Non
obstante clause-Effect of

Sections 32-A and 26-Sentence under Section 26-Held, could not be
s11spended by the trial court resorting to Section 389(3) CrPC-Criminal
F Procedure Code, 1973, Section 389.

Words and Phrases-Word "awarded" occurring in Section 32-Mean-
"
ing oHn the context of Narcotic Drng~ and Psychotropic Substances Act,
1985-Held, not restricted to sentence passed by the trial court.
G Constitution of India-Article 136-Relief-Statute curtailing court's
power to suspend the appeal pending appeaHn view of prohibition con-
tained in Section 32-A on one hand and apprehension of miscarriage of
justice in many cases due to long pendency of appeals on the other
-.. ...
hand-Held, the problem could be solved by Parliament-Till then Registry
H of High Courts directed to prioritise the appeals pending against conviction
1156
M. SINGH v. STATE 1157

under the Act-Narcotic Drugs and Psychotropic Substances Act, 19{J5, Sec- A
tions 32-A and 36-B.

The question involved in this appeal was whether the sentence
passed on a person convicted under the Narcotic Drugs and Psychotropic
Substances Art, 1985 (Act) could be suspended during the pendeucy of
appeal presented by him. The appellant did not succeed in getting the B
se_ntence, passed on him, suspended by the High Court though he moved
challenging his conviction and sentence. Hence this appeal.

It was contended by the appellant that Section 36B of the Act
preserved the powers of the High Court under Chapter XXIX CrPC while C
dealing with an appeal challenging conviction under the Act, and it must
be deemed to have preserved all the powers mentioned in Section 389 CrPC
inclu,ding the power to suspend the sentence.

Dismissing the appeal, this Court
D
HELD : 1.1. When Section 36-B of the Narcotic Drugs and
Psychotropic Substances Act, 1985 is juxtaposed with Section 32-A of the
Act, the latter must dominate over the former namely for two reasons. First
is that Section 32-A overrides all the provisions of CrPC, by specific terms,
through the non obstante limb incorporated therein. Second is that in view E
of the words "so far as may he" used in Section 36-B, the High Court can
exercise powers under Chapter XXIX CrPC only to the extent such powers
are applicable. [1161-B-C]

1.2. If the intention of Parliament in enacting Section 32-A of the Act
was only to curb the Government powers under Sections 432 and 433 F
~ CrPC, Parliament would, instead of using the present all-covering words
in the non-obstante clause, have employed the words "notwithstanding
anything contained in Chapter XXXII of the Code". Precision and brevity
are generally the hallmarks of legislative draftsmanship. That apart, if the
object of Section 32-A is to take away the power of the Government to G
suspend, remit or commute the sentence, the legislative exercise in enact-
ing the said provision is practically of futility because even without Section
_.. 432 CrPC, the appropriate Government can suspend, remit or commute
sentence in exercise of the constitutional functions under Article 72 or 161.
[1161-G; 1161-E-F] H
1158 SUPREME COURT REPORTS [1999] 1 S.C.R.
A Marn Ram v. Union of India, AIR (1980) SC 2147 and Kehar Singh v.
Union of India, AIR (1989) SC 653, relied on.

2.1. In the "Statement of Objects and Reasons" no concern is shown
against the executive powers of remission or commutation or suspension
of sentence. Moreover, there was no criticism from any quarter that the
B Government had been remitting or suspending or commuting sentences
awarded to person convicted of offences under the Act. (1163-C-D]
i
2.2. Since by Section 37 of the Act, the court's power to release an
accused on bail during the period before conviction has been drastically
C curtailed, the position regarding bail cannot be more liberal and lighter
after the trial court finds him guilty of the offence on completion of the
adjudication. Section 32-A was intended to plug the lacuna which existed
during the pre-amendment stage. (1164-E]

2.3. Besides Section 32-A itself exempted cases falling under Section
D 27 of the Act by putting the words "other than Section 27" within a
parenthesis. This is because Section 27 deals with offences of far lesser
degree than other offences in the Act. Therefore, it has to be held that ~
Section 32-A 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 ·
E Section 27) either during pendency of any appeal or otherwise. Similarly,
the power of the Government under Sections 432, 433 and 434 CrPC have
also been taken away. Section 32-A would have an overriding effect with
regard to the powers of suspension, commutation and remission provided
under CrPC. (1164-G; 1166-F]
F
Berlin Joseph@ Raviv. State, (1992) 1 Crimes 1221: (1992) KLT 514;
Anwar v. State, (1994) 2 Crimes 687; Rajendra Singh v. State of M.P., (1995)
Crl. W 3248, approved.

Amarjit Singh v. State, (1993) 2 Recent Crl. Reports 466; Jyotiben
G Ram/al Purohit v. State of Gujarat, (1997) 3 Recent Crl. Report 607, over-
ruled.

3. The premise that the word "award" in Section 32 of the Act should • ~
be construed not as a sentence passed by the trial court cannot be upheld
H at all. To say that a sentence passed by a trial court would be no awarding
M.SINGHv. STATE[THOMAS,J.] 1159

of sentence merely because the conviction has been challenged, appears to A
be too tenuous for countenance. [1166-B]

4. 'l'he effect of any order passed under Section 389(j) CrPC is to
suspend the sentence, as can be discerned from the words in the specific
"and the sentence of imprisonment shall be deemed to be suspended".
When pllwer of suspending the sentence is taken away by the legislative B
" interdict, it would apply to the court which convicts the accused as well. A
large premise cannot be made up on a wrong:assumption. [1166-D]

5. The appellant has voiced concern that if High Courts have no
power to suspend sentence under any contingency its consequence is that C
long duration of pendency of appeal would result in serious miscarriage
of justice in many cases. The solution to such problems can be worked out
by Parliament. Till then the High Courts should direct the Registry to
board appeals under the Act on a priority basis and dispose them of as
early as possible. [1166-G-H] D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
312 of 1999.

From the Judgment and Order dated 20.11.98 of the Punjab &
Haryana High Court in Cr!. M. No. 31361 of 1998. E
Vikram Chaudhary and Mahabir Singh for the Appellant.

R.S. Sodhi for the Respondent.

The Judgment of the Court was delivered by F
THOMAS, J. Leave granted.

Can the sentence, passed on a convicted person under the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') be
suspended during the pendency of appeal presented by him? Answers G
given to the said question by different High Courts are in different tones.
The question has now winched to the fore in this Court as the appellant
did not succeed in getting the sentence (passed on him) suspended by the
High Court though he moved for it on presentation of an appeal in
challenge of the conviction and sentence. H
1160 SUPREME COURT REPORTS [1999) 1 S.C.R.

A Section 32A of the Act, which was inserted by Act No.2 ofJ989 reads
thus:

"32A. No suspension, remission or co!llmutation in any sentence
awarded under this Act - Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 or any other law for the
B
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."

A plain reading of the above Section is that it prohibits suspension
C of a sentence awarded under the Act except in the case of an offence under
Section 27. To make the aforesaid meaning clearer the legislature has
added a non obstante limb to the Section to the effect that such prohibition
is operative in spite of any other provision contained in the Code of
Criminal Procedure, 1973 (for short 'the Code') or under any other law.
D But the impact of the aforesaid ban is sought to be diluted with the help
of Section 36B of the Act which reads thus:

"36B. Appeal and revision - The High Court may exercise, so far
as may be applicable, all the powers conferred by Chapters XXIX
E and XXX of the Code of Criminal Procedure, 1973, on 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."

F Chapter XXIX of the Code contains a fasciculus of provisions for
dealing with "Appeals" among which is included Section 389 of the Code
which confers power for suspension of sentence pending appeal. Such
powers can be exercised by the appellate court as well as by the High
Court. In certain cases power of suspension of sentence can be exercised
by the convicting court as provided in sub-section (3).
G
The argument advanced before us is that when Section 36B of the
Act preserved the powers of the High Court under Chapter XXIX of the
Code while dealing with an appeal challenging conviction under the Act,
it must be deemed to have preserved all the. powers mentioned in Section
H 389 of the Code including the power to suspend the sentence. But we
M.SINGH v. STATE [THOMAS,J.] 1161

cannot give accord to that argument on the following grounds. When A
Section 368 of the Act is juxtaposed with Section 32A the latter must
dominate over the former mainly for two reasons. First is that Section
32A overrides all the provisions of the Code, by specific terms,
through the non obstante limb incorporated therein. Second is that
Section 368 has clearly indicated that its applicability is subject to the B
extent of adaptability because of the words employed therein "so far
as may be applicable". This means, the High Court can exercise
powers under Chapter XXIX of the Code only to the extent such
powers are applicable. In other words, if there is an interdict against
applicability of any provision, the High Court cannot use such
provision, albeit its inclusion in Chapter XXIX of the Code. That is
c
the effect of employment of the words "so far as may be applicable"
when a statute incorporates provision of another statute.

Otherwise Section 32A of the Act must have been intended for
covering some other field altogether. Learned counsel contended that the D
Section is intended to cover the provisions subsumed in placitum "E" in
• Chapter XXXII of the Code. Sections 432 to 435 are bundled therein. The
sub-title given to placitum E is this: "Suspension, Remission and Commuta-
tion of Sentences". Section 432 deals with the power of t!te appropriate
Government to suspend execution of any sentence or to remit the whole E
or any part of the punishment to which any person has been sentenced.
Section 433 deals with the powers of the Government to commute sen-
tence. The contention is that Parliament has sought to curb the aforesaid
powers of the Government through enactment of Section 32A of the Act,
and not the power ofthe High Court to suspend sentence. p

If the intention of Parliament in enacting Section 32A of the Act is
only to curb Government's.powers under Sections 432 and 433 of the Code
the Parliament would, instead of using the present all covering words in
the non obstante clause ("notwithstanding anything contained in the Code G
or in any other law'') have employed the words "notwithstanding anything
contained in Chapter XXXII of the Code". Precision and brevity are
generally the hiil.lmarks of legislative draftsmanship. Hence lesser word~ for
achieving the purpose would have been employed by the legislature while
framing a provision in the statute. H
1162 SUPREME COURT REPORTS [1999] 1 S.C.R.

A That apart, could parliament have laboured so much if its only object
was to bridle the powers of the Government under Section 432 and 433 of
the Code because even apart from those provisions a Government could
achieve it by exercising the constitutional powers. Article 72 of the Con-
stitution of India confers power on the President of India "to suspend, remit
B or commute sentence" in all cases where punishment or sentence is for an
offence against any law relating to a matter to which executive power of
the Union extends. Art.161 contains similar power which Government of a 1
State can exercise in relation io a person convicted of any offence against
law relating to a matter which the executive power of the State extends.

c A Constitution Bench of this Court has held in Mam Ram v. Union
of India, AIR (1980} SC 2147 that power under Arts.72 and 161 of the
Constitution cannot be exercised by the President or Governor on their
own but only on the advice of the appropriate Government. The said ratio
has been followed by another Constitution Bench in Kehar Singh v. Union
D of India, AIR (1989} SC 653. Thus, the position relating to Arts.72 and 161 ..
of the Constitution, as interpreted by this Court, is that the appropriate
executive Government can advice the Head of the State to exercise powers
thereunder and such advice is binding on him.

E If the object of S.32A of the NDPS Act is to take away the power of
the Government to suspend, remit or commute the sentence, the legislative
exercise in enacting the said provision is practically of futility because even
without Section 432 of the Code, the appropriate Government can suspend,
remit or commute sentences in exercise of the constitutional functions.

F For the aforesaid reasons we are not impressed by the contention
that the sole object of incorporating a provision like Section 32A in NDPS
Act was to impose curb on the executive power under Sections 432 and
433 of the Code to suspend, remit or commute the sentence passed on a
particular accused.
G
In this context the raison d'etre for introducing Section 32A in the
Act can be looked at. In the "Statement of Objects and Reasons" for
introducing Bill No.125/1988 in the Lok Sabha (which later became Act 2
of 1989) the following passage has been menticined as one of the state-
H ments:
M.SINGH v. STATE [THOMAS,J.] 1163

..,. "Even though the major offences are non-bailable by virtue of A
the level of punishment, on technical grounds, drug offenders were
being released on bail. In the light of certain difficulties faced in
the enforcement of NDPS Act, 1985 the need to amend the law to
further strengthen it, has been felt."

One of the objects mentioned therein. is this: "To provide that no B
sentence awarded under the Act shall be suspended, remitted or com-
muted."

It must be pointed out that in the "Statement of Objects and Reasons"
no concern was shown against the executive powers of remission or com- c
mutation or suspension of sentence, but the main concern focussed was on
the need to further strengthen the bail provisions. That apart, we are not
aware of any criticism from any quarter that Government have been
remitting or suspending or commuting sentences awarded to persons con-
victed of offences under the Act. It is preposterous to think that a situation
D
was created by which Parliament was forced to step in to curb the executive
powers of the Government to suspend sentences passed on the convicts
.• under the Act.

At this juncture a reference to Section 37 of the Act is apposite. That
provision makes the offences under the Act cognizable and non-bailable. E
It reads thus:

"37. Offences to be cognizable and non-bailable.- (1) Not-
withstanding anything contained in the Code of Criminal Proce-
<lure, 1973 -
F
(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-
G
(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 H
1164 SUPREME COURT REPORTS (1999] 1 S.C.R.

A 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) ;;re in addition to the limitations under the Code
of Criminal Procedure, 1973 or any other law for the time being
B In force, on granting bail."

The only offences exempted from the purview of the aforesaid
rigours on the bail provisions are those under Sections 26 and 27 of the
Act. The former is punishable up to a maximum imprisonment for three
C years and latter up to a maximum imprisonment for one year. For all other
offences the court's power to release an accused on bail during the period
before conviction has been thus drastically curtailed by providing that if
the Public Pros~cutor opposes the bail application no ac.cused shall be
released on bail, unless the court is satisfied that there are reasonable
D grounds for believing that he is not guilty of such offence.

If the position was thus even before a trial court completes adjudica-
tion, the position regarding bail cannot be more liberal and lighter after >
the trial court finds him guilty of the offence on completion of the adjudica-
tion. The interpretation sought to be placed by the learned counsel would
E lead to the consequence that power of court to release an accused on bail
during preconviction is rigorous while it will be liberal during post- convic-
tion period. We do not think that Parliament would have intended such a
consequence to take place. Section 32A was intended to plu15 the lacuna
wltlch existed during the pre-amendment stage.
F
It is pertinent to notice that Section 32A itself exempted cases falling
under Section 27 of the Act by putting the words "other than Section 27"
within a parenthesis. This is because Section 27 deals with offences of far
lesser degree when compared with the other offences in the Act. Learned
counsel' contended that if that was the intention of Parliament Section 26
G also would have been included in the parenthesis so as to exempt that
offence from the purview of Section 32A. We are not disposed to question
the wisdom of Parliament as to why Section 26 was also not brought within
the exemption. Perhaps it was not so dorie because Section 26 relates to
offences which are more serious than the offences mentioned in Section 27
H of the Act.
M. SINGH v. STATE [THOMAS, J.] 1165
.. A Full Bench of the Kerala High Court in Berlin Joseph @ Ravi v. A
State, (1992) 1 Crimes 1221 = (1992) KLT 514 has adopted the view that
Section 32A of the Act has curtailed the powers of the court to suspend
the sentence passed on a convicted person of offences under the Act,
except the offence under Section 27. A Division Bench of Rajasthan
High Court in Anwar v. State, (1994) 2 Crimes 687 and a Full Bench of
Madhya Pradesh High Court in Rajendra Singh v. State of M.P., (1995) Cr!.
B
Law Journal 3248 have also adopted the same view.

But a Division Bench of the Delhi High Court in Ama1jit Singh v.
State, (1993) 2 Recent Cr!. Reports 466, has taken a different view on
Section 32A. Though the Full Bench decision in Berlin Joseph v. State, c
· (supra) was brought to the notice of the Division Bench it was skipped by
a court observation in the following lines:

"Mr. Handa strongly relied on a later Full Bench decision of the
Kerala High Court in Berlin Joseph @ Ravi v. State, (1992) 1
Crimes 1221 where the Full Bench has taken the view. that High D
Court has no power to suspend the sentence of a convicted person
• under the Act during the pendency of his appeal or revision. With
respect we are unable to agree to this view. Section 32A of the Act
is .neither a proviso to section 36B of the Act nor it controls it."

The Delhi High Court has not adverted to any of the reasoning
E
contained in Berlin Joseph's decision. But a Full Bench of the Gujarat High
Court in Jyotiben Ram/al Purohit v. State of Gujarat, (1997) 3 Recent Cr!.
Reports 607, considered the question, rather at length, and differed from
the ratio in Berlin Joseph (supra). Three premises were put forward by the
......
Gujarat High Court in the said decision. First is that Section 36B has F
• clearly conferred all powers provided in Chapter XXIX of the Code .
Second is, the word "award" used in Section 32A of the Act denotes only
the sentence passed by the final court and not the trial court. Third is, that
under Section 389(3) of the Code a trial court is empowered to suspend
the sentence for the offence under Section 26 of the Act and if that be so
G
"the legislature can hardly have thought about bringing such an anomalous
consequence, namely that the trial court can grant bail but the appellate
- ~ court cannot".

We must observe that the aforesaid three premise are faulty. We have
already dealt with the contention that Section 36B would take care of H
1166 SUPREME COURT REPORTS [1999) 1 S.C.R.

A powers of the appellate court to suspend the sentence and we found that
the provision cannot override the clear ban contained in Section 32A of
the Act. The second premise that the word "award" should be construed
not as a sentence passed by the trial court cannot be upheld at all. How
can it be said that when trial court awards a sentence that cannot be treated
B in law as a sentence awarded. Then what is the legal import of such a
sentence? To say that a sentence passed by a trial court would be no
awarding of sentence merely because the conviction has been challenged,
appears to us to be too tenuous for countenance.

The third premise adopted by the Gujarat High Court is based on a
C fallacious assumption that in spite of Section 32A the trial court has power
to suspend the sentence passed on a conviction under Section 26 of the
Act. Learned judges wrongly assumed that under Section 389(3) of the
Code a trial court has such a power. The effect of any order passed under
Section 389(3) of the Code is to suspend the sentence, as can be discerned
D from the words in the specific "and the sentence of imprisonment shall be
deemed to be suspended." When power of suspending the sentence is taken
away by the legislative interdict, it would apply to the court which convicts
the accused as well. A legal premise cannot be made up on a wrong
assumption.

E 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 Sections 432, 433 and 434 of the Criminal Procedure
p 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.

Before parting with the matter we must deal with a possible fall- out
G of adopting such a view. Learned counsel for the appellant has voiced a
concern that if High Courts have no power to suspend sentence under any
contingency its consequence is that long duration of pendency of appeals
would result in serious miscarriage of justice in many cases. We are aware 1 -
of such hard consequences which might erupt. The solution to such
problems can be worked out by Parliament. Till then the High Courts
H should direct the Registry to board appeals under the Act on a priority
M. SINGH v. STATE (THOMAS, J.) , 1167

basis and dispose them of as early as possible. As a temporary measure to A
lessen the problem we direct the Registry of each High Court to include
every appeal (against conviction of offences under the Act) in the hearing
list as soon as such appeal becomes ripe for hearing. We express the hope
that the Bench of the High Court concerned would give preference to such
appeal for early hearing.
B
The appeal is disposed of accordingly.

... R.K.S . Appeal disposed of.