HC larger Bench to decide if trial courts can suspend sentence in minor drug cases

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 Psychotropic Substances (NDPS) Act.

The reference by Justice Sanjay Vashisth of the HC came during the hearing of an appeal against conviction and sentence filed by two convicts directed to undergo two-year rigorous imprisonment by a Special Judge under the NDPS Act.

It assumes significant as the trial court is empowered to release a convict on bail, where sentence of imprisonment does not exceed 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 jail for three years or less after conviction over seizure of non-commercial quantity of a contraband.

Justice Vashisth said the 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 said Section 32A of the NDPS Act imposed a bar on 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 will be available to the trial court in the context of NDPS cases,” Justice Vashisth asserted.

Punjab