GITESH RANJAN BHATTACHARJEE, J. - (1.) The appellant prays for bail pending disposal of the appeal preferred by her against the conviction and sentence awarded by the trial Court. The trial Court has by its order dt. 26-2-97, sentenced the appellant to rigorous imprisonment for ten years and also to a fine of Rs. 1,00,000/-, in default to R.I. for two years more for her conviction under S. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The learned Additional Public Prosecutor however submits inter alia that in view of S. 32A of the NDPS Act the sentence imposed upon the appellant cannot be suspended and therefore she cannot be enlarged on bail now. This proposition is however opposed by the learned Advocate for the appellant. Let us now examine the legal position in this respect.
(2.) Section 32A and S. 33 of the NDPS Act are set out below :-"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 S. 33, no sentence awarded under this Act (other than S. 27) shall be suspended or remitted or commuted.""33. Application of S. 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958.Nothing contained in S. 360 of the Code of Criminal Procedure 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958) shall apply to a person convicted of an offence under this Act unless such person is undereighteen years of age or that the offence for which such person is convicted is punishable under S. 26 or S. 27."
(3.) Section 32A thus in clear terms imposes an embargo that no sentence awarded under the NDPS Act (other than S. 27) shall be suspended, remitted or commuted. And this is so notwithstanding anything contained in the Code of Criminal Procedure which means that this embargo will prevail by overriding the provisions of the Cr. P.C. S. 32A however has been made, in express term, 'subject to' S. 33. In view of S. 33 of the NDPS Act S. 360, Cr. P.C. or the Probation of Offenders Act may however apply in a case only under S. 26 or S. 27 of the NDPS Act or where the convict under the said Act is under eighteen years of age. This means that in view of S. 33 of the NDPS Act in certain circumstances sentence may be kept suspended by deferring the same in spite of conviction under the said Act and in spite of S. 32A thereof. As a result, a Court of appeal or revision may, in an appropriate case, by exercising power under S. 360(4) Cr. P.C. uphold the conviction and sentence awarded by the trial Court and yet suspend and defer the sentence for a future eventuality and release the convict on bond of good behaviour with or without sureties. This is rather an exception to the embargo of S. 32A and this exception has been incorporated in S. 32A itself and apart from that there is no other exception. Therefore during the pendency of the appeal the convict cannot be enlarged on bail thereby suspending the sentence of imprisonment awarded by the trial Court. It is sought to be contended on behalf of the appellant that the embargo of S. 32A of the NDPS Act on the exercise of power to suspend, remit or commute a sentence is limited only to the power which the Government could exercise in this respect under S. 432 or S. 433 of the Code of Criminal Procedure and this embargo has no application to the exercise of power by the Court. This contention is however not acceptable because the language of S. 32A NDPS Act is general in its purport and import without restricting scope of the embargo to the exercise of power by the Government alone. Rather by making S. 32A 'subject to' S. 33 the legislature has carved out a limited exception in favour of Court in certain circumstances thereby clearly indicating that apart from S. 33 the Court also has no power to suspend the sentence by ignoring S. 32A.;