Guest Post: Suspension of Sentence and the NDPS Act — An Unhappy State of Affairs

(I am delighted to present a guest post by Nipun Arora, an advocate practising in Delhi, and Shivkrit Rai, a law researcher at the Delhi High Court)

The Code of Criminal Procedure (Cr.P.C.) provides for securing liberty of persons in custody at various stages: individuals named as an accused in cases where the trial is pending can seek bail in terms of Sections 437 & 439 (Regular Bail); and convicts can seek a stay on execution of sentence under Section 389 (Suspension of Sentence). Jurisprudentially, there has been a difference between the two and the factors that the court must consider while deciding upon either of these. However, for the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), the situation is different. This post discusses how the distinction becomes diluted in cases under NDPS Act and leads to serious trouble.

Understanding the two stages of liberty for an accused. Bail v. Suspension of Sentence

During the trial, an accused person can seek bail. For a bailable offence, this can be availed as a matter of right, whereas in a non-bailable offence, bail depends on the discretion of the court after considering various factors such as the possibility of fleeing, chances of tampering the evidence, gravity of the offence, etc.

If found guilty, the convict can make an appeal before the appellate court, and during the pendency of this appeal, the convict can seek suspension of the sentence imposed by the trial court. The logic is similar as that of bail: if there is a possibility that the person might not have committed the offence, it would not be proper to confine them in custody.

However, the factors to be considered for suspension of sentence are different from that of bail. At this stage, the trial is over, evidence has been recorded, and a competent court has found the person guilty after application of judicial mind. The factors such as possibility of tampering evidence do not exist anymore. The decision to suspend the sentence or not has to be based on different factors: primarily on how long it would take for the court to decide the appeal. For instance, it would not be proper to suspend the sentence if the appeal is to be heard next week; whereas it would be desirable for the sentence to be suspended if the appeal might not come up for several years. The Supreme Court has reiterated these principles several times [Bhagwan Rama Shinde Gosai v. State of Gujarat, AIR 1999 SC 1859; Kashmira Singh v. State of Punjab, (1977) 4 SCC 291].

The distinction between bail and suspension of sentence has also been recognised by courts multiple times in Anil Ari v. State of WB [AIR 2009 SC 1564]; Atul Tripathi v. State of UP [(2014) 9 SCC 177]; Jagdip Beldar v. State of Bihar [Crl. App. (SJ) 2319/2017 (Patna HC)]. The logic is the same as discussed above: the trial has ended, a competent court has found the person guilty, the presumption of innocence does not exist anymore. The situation at pre-conviction and post-conviction stage is thus different.

Bail & suspension of sentence under NDPS Act

In cases under certain special statutes, the standard principles of bail as discussed above do not apply. These are the offences that are considered “grave” such as those under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), the Maharashtra Control of Organised Crime Act (MCOCA), the Unlawful Activities (Prevention) Act (UAPA), etc. Under the NDPS Act, bail can only be granted if “the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail” (Section 37, NDPS Act). The embargo is problematic and has been discussed earlier on this blog. In brief, it requires the court to adjudge the guilt of the accused even before the trial has commenced and mostly without adequate material before it.

Besides the strict threshold for bail, the legislature also tried to place a blanket prohibition on suspension of sentence. By an amendment in 1989, Section 32A was inserted in the NDPS Act which took away the power of the court to suspend the sentences awarded under this law. This provision was challenged before the Supreme Court in Dadu @ Tulsidas v. State of Maharashtra [(2000) 8 SCC 437]. The full-bench of the Supreme Court held that the restriction on the power to suspend sentences is unconstitutional as contrary to Articles 14 and 21. The Court approved the judgement of Allahabad High Court in Ram Charan v. Union of India [AIR 1990 All 1480] that taking away the possibility of suspension of sentence renders the right to appeal meaningless.

While holding the provision unconstitutional, however, the Supreme Court noted that it would not automatically entitle an appellant to have the sentence suspended. It observed:

Holding Section 32A as void in so far as it takes away the right of the courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act.

The Court then misquotes a division-bench judgement of the Supreme Court in Union of India v. Ram Samujh [(1999) 9 SCC 429] to apparently substantiate the position that restrictions of Section 37 would apply to suspension of sentence as well, though that judgement related to regular bails and did not deal with suspension of sentence at all. Regardless of the misquote, the law as it stands is that the threshold required in regular bail needs to be met for suspension of sentence as well. This makes things peculiar.

The Problematic Misinterpretation of the Court in Dadu @ Tulsidas

In theory, the extension of restrictions of Section 37 would make suspension of sentence impossible and could lead to certain illogical conclusions. For starters, the threshold for bail as per Section 37 requires the court to be of the opinion that the person “is not guilty of such offence”. The same threshold cannot be applied in a case of suspension of sentence, as the person has already been convicted by a competent court. Thus, the moment an order for suspension of sentence is passed, which matches the threshold of bail i.e. “not guilty of such offence”, the entire appeal will have to be allowed. This is because a conviction can only stand if the guilt is proved beyond reasonable doubt, and if there could be any opinion that the convict is not guilty (as required under Section 37), there clearly exists a reasonable doubt (or perhaps much more than a mere reasonable doubt).

It is absurd that a person can be said to be reasonably not guilty (in the order for suspension) but be a convict (in the final order) at the same time from the assessment of the same material by the same court. The extension of Section 37 to suspension of sentences makes the issues of the interim order so connected with the issues of the final judgement, that they cannot possibly be separated.

This paradox does not exist (or is not as apparent) at the stage of trial, perhaps because of the distinction in factors under consideration as discussed earlier: The trial court has to make a prima facie determination before or during the trial, and there is a possibility of adequate material emerging showing the guilt of the accused. However, that is not the case at the appellate stage – once it can be concluded in the interim order that there are grounds to believe that the accused is innocent, that view ought to be extended even at the final stage.

Even besides the resultant illogic, restrictions of Section 37 were not supposed to apply to suspension of sentence. It states that “no person accused of an offence” shall be released unless the conditions are satisfied – the subject of the section here is an accused, not a convict. The scope of the section is clearly limited by the words of the legislature. The legislature has not laid down any additional requirement for suspension of sentence. By extending the scope of Section 37 to apply to suspension of sentences as well, the paradoxical situation has emerged.

Conclusion

There has been a distinction in regular bail and suspension of sentence, and the factors relevant to both. However, the Supreme Court in Dadu @ Tulsidas appears to have overlooked this distinction and artificially created further restrictions which should not have applied otherwise. There was no especial requirement for the Supreme Court to have engaged in the unnecessary academic exercise of whether the restrictions of Section 37 would apply or not, when the scope of the challenge before it was limited precisely to the constitutionality of Section 32-A. Dadu @ Tulsidas, thus, appears to have been decided incorrectly to this extent and needs to be reconsidered. The embargo of Section 37 should not apply to cases of suspension of sentence.