- (1.) Petitioner Gyan Chand was convicted and sentenced by the learned Sessions Judge, Jaisalmer, for the offence under S. 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 S. 32-A 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 S. 389, Cr. P.C. for suspension of sentence during the pendency of the appeal, have been taken away by S. 32-A of the Act or they have been preserved by S. 36-B of the Act ? Section 32-A and S. 36-B of the Act are two provisions in the Act, which deal with the powers regarding suspension of sentence and read as under :- "Section 32-A. 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 Section 77) shall be suspended or remitted or commuted". "Section 36-B. 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 32-A of the Act starts with a non obstinate clause and provides that no sentence awarded under the Act, other than S. 37, shall be suspended, remitted and commuted, while S. 36-B 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 S. 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 Ss. 432 and 433, Cr. P.C. and the powers of the appellate Court to suspend the sentence under S. 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 S. 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 Ss. 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, S. 386, Cr. P.C. deals with the powers of the appellate Court. According to S. 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 S. 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 S. 389, Cr. P.C.;