32 a ndps act
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(Querist) 29 March 2012
This query is : Resolved
Dear sirs,
As per the latest Amendment Act, section 20(b)(ii)(A) of NDPS Act, possession of cannabis of small quantity, is only a bailable offence, and triable by Judicial First Class Magistrate, with maximum punishment of RI for a term of 6 months or with fine which may extend to Rs. 10,000/-!
Some magistrates use their discretion and allows the accused to plead guilty of the offence and permit him to pay a fine of Rs.5000/- and disposes of the case without waiting for a long lasting trial and examination of witnesses!
Here, in such a case, one magistrate did not allow the accused to plead guilty , and also warned that if he pleads guilty, he has to undergo imprisonment also !
so, naturally, he denied the charge and stood for trial.
At the end of the trial, he was found guilty and sentenced to undergo 3 months imprisonment !
Then, I have moved a petition u/s 389 CrPC, to suspend the sentence for One month, to enable him to file an appeal before the District Court.
But, to my great astonishment,learned magistrate returned my petition , stating that Sec 389 Crpc is not at all applicable for an offence under NDPS Act and a sentence under NDPS cannot be suspended , however minor the offence be !
The magistrate explained that sec 32 A NDPS Act is very clear on this topic !
Eventhough , sec 32A says something in this tune, I cannot believe that a bailable offence, triable by magistrate, sentence cannot be suspended due to the insertion of a new sec 32 A !
i can believe , and it is justifiable also, that this new section is applicable to an offence u/s 20(a)B or 20(a)C, as both these offences are serious in nature and non-bailable and triable by sessions court or special court !
Can anybody explain, the exact scope of Sec 32-A NDPS Act ?
Adv.R.P.Chugh
(Expert) 29 March 2012
Dear Colleague,
I've had the occassion of going through S.32-A - it clearly begins with a non-obstane clause - that gives it a overriding effect on CrPC, and the general principle that 'specialia generalibus derogant' the special law prevails over the general one.
Dwelling deeper into the objects and reasons - it seems that it was enacted because it has been seen that recidivism among drug peddlers/abusers etc. was very high, and prison sentences are not just way of punishing them but correcting them and treating them, hence if sentence is suspended, the person would be at large, and since appeals take a long to decide - society may be at peril.
In the ultimate analysis - I don't find that there is anything we can do in light of the mandatory provision
Shonee Kapoor
(Expert) 30 March 2012
Though I have not studied this act, the explaination of Ld. Chugh seems appropriate.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
V R SHROFF
(Expert) 30 March 2012
I have not dealt , but the explaination of Adv Bharat Chugh seems OK
It was clear, as magistrate decided this case prior to trial !! He said no cash punishment, will be jailed !!
