Suspension of Sentence in NDPS Act
Generally, after concluding the criminal trial, the court pronounces the convict either the accused or acquit. If accused is convicted for the offense lesser than three-year punishment, the convicted court has power to post-conviction suspension of sentence of the accused and grant the time for filing the appeal against the sentence awarded to him. But The NDPS Act makes no provision for post-conviction suspension of sentence.
Court Has No Power to Grant Suspension of Sentence-
The section 32-A under the Narcotic Drugs and Psychotropic Substances, 1985 (`NDPS Act’ – for short) barred the convicted court from suspending the sentence for filling the appeal. Definition of ”section 32-A” is very clear “ No suspension, remission or commutation in any sentence awarded under this Act – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 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. A plain reading of the above Section is that it prohibits the suspension 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. 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 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.
Power of High Court to grant of Suspension of Sentence –
A case for the grant of bail pending trial or suspension of sentence pending disposal of appeal would not be on the same analogy in view of the provisions of section 32-A and 37 (1) (b) and (2) of the NDPS Act. In respect of the said provisions a Full Bench of this Court in the case of Tule Ram v. State of Haryana, 2005 (4) RCR (Cr.) 319 considered the powers of the appellate Court for suspension of sentence in a case under the NDPS Act pending appeal.
It was observed by the Supreme Court that where an appeal is preferred against conviction under the NDPS Act in the High Court, the High Court has ample power and discretion to suspend the sentence. That discretion has to be exercised judiciously depending upon the facts and circumstances of each case. While considering the suspension of sentence each case is to be considered on the basis of the nature of the offence, the manner in which the occurrence had taken place, whether bail granted earlier had been misused. It was observed that there was no straitjacket formula which could be applied in exercising discretion and the facts and circumstances of each case would govern the exercise of judicious discretion while considering an application filed by a convict under Section 389 Cr.P.C.
Facts considered for Suspension of Sentence–
There are some of the factors seen by the court at the time of granting the suspension of sentence like the nature of the offence, including the gravity or heinousness or the cruel mode of its execution, the question whether there has been misuse earlier, other criminal cases, if any, pending against the convict or other cases where he has been convicted, the propensity and potentiality of the person seeking suspension of sentence in criminal activities while on bail, the likelihood of the convict absconding or his having been a proclaimed offender, his conduct in jail and whether he has misused the concession of parole or furlough, his capacity to furnish surety for his release are some of the factors which would require consideration. Besides, it would be open to the Court to even post the appeal for hearing by fixing a time-frame for its disposal. Therefore, these aspects would also be best left to the judicious discretion of the Court seized of the case.