Can trial courts suspend sentences in minor drugs cases? HC seeks answer from larger Bench
The Punjab and Haryana High Court has referred a significant question of law to a larger Bench — whether a trial court can suspend a sentence and grant bail to a convict sentenced for three years or less in a non-commercial quantity case under the Narcotic Drugs and other Psychotropic Substances (NDPS) Act.
The reference by Justice Sanjay Vashisth of the high court came during the hearing of an appeal against conviction and sentence filed by two convicts directed to undergo two years’ rigorous imprisonment by a Special Judge under the NDPS Act.
It assumes significance as the trial court is empowered to release a convict on bail, where sentence of imprisonment does not exceed the term of three years. But, the appellants were not granted bail by the trial court by exercising power under Section 430(3) of the BNSS or Section 389(3) of the CrPC.
Justice Vashisth asserted the main issue before the court was whether the trial court’s power to suspend its order of sentence — until the filing of an appeal – stood abrogated or curtailed by the NDPS Act where the accused was sentenced to three years or less after conviction for non-commercial quantity of contraband.
Referring to the facts of the case, Justice Vashisth asserted both applicants/appellants were already on bail when they were held guilty and awarded two-year sentence. The “pertinent issue” cropping up for the court’s consideration during the hearing of their bail plea was – “Why were the appellants not granted bail by the trial court itself, by exercising power under Section 430(3) of the BNSS?,” the court observed.
Justice Vashisth observed that Section 32A of the NDPS Act imposed a bar suspension, remission and commutation of sentences under its own provisions. But, the recently enacted BNSS contained no such express bar on the trial judges exercising powers under Section 430(3), even in NDPS matters.
“A perusal of Section 430 of the BNSS does not reveal any provision that precludes a trial judge from exercising the power conferred under Section 430(3), even in the cases under the NDPS Act. In the absence of any express bar within the BNSS, it becomes necessary to examine whether such power would be available to the trial court in the context of NDPS cases,” Justice Vashisth asserted.
The court also took on record the amicus curiae reference to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances underlining that alternative measures were contemplated for minor offences under international law. Among other things, he told the Bench that the convention recognised that alternative measures could be considered in place of conventional punitive sanctions in appropriate cases of a minor nature, including educational programmes, rehabilitation initiatives, and measures aimed at the social reintegration of the offender. He added such international standards promoted treating minor drug offenders with rehabilitative measures rather than solely incarceration.
The state counsel supported the legal submissions made by the amicus curiae but insisted that convicts could not be granted bail post-conviction except under specific provisions of the NDPS Act. “The accused/convict is not entitled to bail during the pendency of appeal except under Section 27, because powers to suspend bail, grant of remission and commutation etc. have been taken away by Section 32A of the NDPS Act.”
Chandigarh