Court's Power to Suspend Sentence Vis-a-Vis Section 32A of N.D.P.S. Act 

(By V.K. Sathyavan Nair, Advocate)

This clarificatory Note is necessitated by some instances of omission to bring to the notice of the court, the correct legal position laid down by the Supreme Court regarding the Constitutional validity of Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1935, resulting to disinclination of the court to invoke the jurisdiction under Section 389 of the Code of Criminal Procedure to suspend the sentence of a person convicted under the NDPS Act.

The short question is whether Section 32A of the NDPS Act has taken away the right of the court to suspend the sentence of a convict in cases under that Act and is there a total blanket ban?

Section 32A of the N.D.P.S. Act reads: 

“Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law, for the time being in force but subject to the provision of Section 33, no sentence awarded under this Act, (other than Section 27) shall be suspended or remitted or commuted.”

Section 27 of the Act which prescribes the punishment for consumption of any narcotic drug or psychotropic substance is an exception to Section 32A. Section 33 referred to in S.32A deals with the applicability of Section 360 of the Code of Criminal Procedure, as well as Probation of Offenders Act. S.32A is unambigous and clear and there can be no doubt that the total blanket ban enfolds within its grip even the powers of the court to suspend sentence under Section 389 of the Code of Criminal Procedure in the case of a person convicted under the N.D.P.S. Act except under Section 27.

The next question is whether the legislative mandate under Section 32A of N.D.P.S. Act suffers from arbitrariness and whether it offends the mandate of Article 14 of the Constitution.

There are conflicting judgments of the High Courts on the question of Constitutional validity of Section 32A of the N.D.P.S. Act. The plea in favour of the total ban is that prisoners convicted under the N.D.P.S. Act are a class by themselves and the nefarious illegal activities connected with drug trafficking have to be curbed deterrently and there is a reasonable distinction between a prisoner convicted under Narcotics Act and a prisoner convicted for any other offence. The argument is plausible, but the Allahabad High Court in Ram Charan’s case found that Section 32A suffers from arbitrariness and thus violative of the mandate of Articles 14 and 21 of the Constitution.

In Maktoo Singh v. State of Punjab (AIR 1999 SC 1131) the Supreme Court held that Section 32A would have an overriding effect with regard to the powers of suspension, remission and commutation.

In Dadu alias Thulasidas etc. v. State of Maharashtra (AIR 2000 SC 3203) the petitioner in the Writ Petition who is undergoing sentence of imprisonment approached the Supreme Court challenging the constitutional validity of S.32A as he could not claim parole presumably under the impression that the said section is a bar for the State to grant it. The Supreme Court held that parole means the release of a prisoner temporarily for a specific purpose before the expiry of the sentence and it does not amount to suspension, remission or commutation of sentence. Then the question of ouster of jurisdiction of the court under Section 339 Cr. P.C. and the Constitutional validity of Section 32A of N.D.P.S. Act has been elaborately discussed and the court held that Section 32A of N.D.P.S. Act is not Constitutional to the extent it takes away the right of the court to suspend the sentence of a convict. It has also been made specific by the court that the sentence can be suspended only and strictly subject to the conditions spelt out in Section 37 of the N.D.P.S. Act. Though the verdict specifically refers to the Appellate Court only the law declared by the Supreme Court is binding on all courts and it is applicable with equal force to court by which the accused is convicted exercising powers under Section 389(3) Cr. P.C. to suspend the sentence pending presentation of appeal. The Supreme court also found that there is no vice of unconstitutionality in Section 32A in so far as it takes away the powers of the Executive conferred upon it under Ss.432 and 433 of the Code of Criminal Procedure.

The law explicitly declared by the Supreme Court in Dadu’s case(supra) admits of no doubt and the court can exercise powers under S.389 of the Code of Criminal Procedure to suspend the sentence of a convict in N.D.P.S. case pending appeal or pending presentation of appeal subject to the limitations prescribed under S. 37 of the N.D.P.S. Act.

The Inimitable -- Senior Advocate Sri.T.P. Kelu Nambiar

(By V.B. Premachandran, Advocate, High Court of Kerala)

A Lawyer, who was highly erudite and dedicated to the profession for more than half a century is now no more. He started wearing the lawyer’s garb from the year 1953 onwards and was associated with the High Court of Kerala from its very inception from 1956 onwards in the “Manmohan Palace” and later in our new majestic High Court building.

With a pencil in his right hand, he argued in the court halls with precision and clarity. He always presented the client’s cause in brief, pointwise and kept himself away from unnecessary, lengthy and irrelevant aspects - whether it be constitutional questions or matters relating to various other branches of law.

He was incomparable in many ways, who was, in fact, multifaceted. An excellent teacher (for many decades in the Law College), a celebrated lawyer and a writer. His contribution to the journal pages of the legal publications are always immensely guiding, inspirational, and beacon lights. His articles are overwhelming with humour, advise, wit, sarcasm, philosophy and aesthetics in language and above all educative and informative. His writings bear testimony, not only to his acumen and scholarship in the field of law, but also his philosophy and outlook towards the world.

He spoke and wrote much about the legal profession’s fears, myths and facts. He was never reluctant or fearful while giving certain directions or guidelines even to the Hon’ble Judges. In one article which appeared in 2010 (4) KLT at page 2 of the Journal part, he wrote “Judges should remember that there is no award for good judgment, for there should never be a bad judgment’.

In another Article  2003 (1) KLT at page 34, journal part, Sri.Nambiar, regarding certain Judges, moved his pen to put as “They even go to the extent of framing questions at home, and asking lawyers to answering in court even at the start of the case, forgetting that Advocacy is not a quiz programme and a judge should not act as a quiazzical quizzer.  Advocacy should never be muffled, crippled and stifled”. Such words could not be taken as guidelines/advises to Hon’ble Judges and not at all intended for any iota of humiliation against them. He was always  simple and unassuming.

What really astonishes one, is how he managed to get time to move his pen for articles in the legal publications, while busily engaged in the profession especially being the legal advisor and standing counsel of several corporate clients. An octogenarian who worked for so many hours a day, is always an inspiration to all in the profession, Bench and the Bar alike. It reminds the saying - “It is always, the busiest man who has got time to spare”.

By writing the “The last page”, 2011 (2) KLT at journal page 1, he withdrew from his writings in the legal journals, which undoubtedly, is a loss to all of us, readers.

Yes, a stalwart of the profession left us. In the years to come, men may come and go in our legal fraternity, but Sri.T.P.Kelu Nambiar will be remembered as a different personality with a different style. Mourning and grief have no place when life and death are mere changes of costumes, as the Bhagavath Geetha says it. He has left this shore leaving the lawyer’s black robes to yet another eternal world. His throne in the profession will remain vacant forever. We will not witness him any more in the court halls of the 8th storeyed building of our prestigious High Court. But, he will not be faded in our memories.

Despite the fact that the ritualistic and conventional condolences are meaningless and futile, we may wish - “Let his soul rest in peace”.

Sri. T.P. Kelu Nambiar (Senior Advocate) : A Karma Yogi Lawyer

(By G. Krishna Kumar, Advocate, Ernakulam)

“Swe swe karmanyabhiratha Ha               tkz tkz IÀ½Wy`ncXx

Samsidhim labhathe Nara Ha”                  kwkn²nw em`tX \cx

(Devoted to his duty, man attains perfection.)

                                                                                                   - The Bhagavad Geeta, 18:45

Sri. T. P. Kelu Nambiar (Senior Advocate) was a friend, Philosopher and Guide of both the Bar and the Bench. As a lawyer, he was having impeccable integrity, indefeasible devoutness and he was a power house of knowledge. He, an excellent orator and senior friend of the Bar, was a multifaceted personality who excelled as a lawyer, author and teacher.

His courage and leadership qualities were inimitable. His command over English language was enviable. Once an English Professor admirably told me about the command of Sri.Kelu Nambiar over English language.

He advised junior members of the Bar “....A lawyer is not a bezonian. A lawyer’s loyalty is to the law; and by worshipping law, chanting law and meditating on law, he becomes a true lawyer.(Nambiar’s Third Miscellany - Page 15.)”

He was much concerned about the attitude of shutting down arguments, the life blood of advocacy, which reflected in the article ‘Heard Both Sides’(2003 (3) KLT Journal 33.). According to him, “Advocacy is the armor of a lawyer...”. He wrote “Lawyers should be earnest to plead for their clients; not to please the judges..”(‘Obituary; Advocacy’ - 2007 (3) KLT Journal 33.)

Speech delivered by Sri. Nambiar in the retirement speech of Justice Chandrasekhara Menon is a testimonial of his oratory skill with apt quotations. The said speech describes the qualities of Justice Chandrasekhara Menon who had adorned all the qualities and virtues to be adorned by Judges. Sri Nambiar Spoke “...your Lordship knew that judges should not behave like the irritable sage Durvasa and that a person occupying a prestigious, influential and powerful post should never lose his head and show dignified unconcern.... “(Nambiar’s Miscellany – Page 33.)

He was very proud of being a lawyer which reflected in his articles ‘The Importance of being a lawyer’. In the speech delivered on the occasion of enrollment of advocates, he expressed his affection to the profession in these words “At the end of the day, I should think that the legal profession is a great, glorious, noble profession. And, if there is a rebirth for me, and if am asked what type of birth I would like to take next, my answer would be I wish to be reborn a lawyer only.” (Nambiar’s Third Miscellany - Page 172.)

When the dictum laid down in Kalyani v. Kalyani (1969 KLT 362) was impliedly overruled by Kochouseph v. Joseph (1976 KLT 512) he wrote an article “Obituary: Kallyani  (1976 KLT Journal 51.). The caption of the said article itself conveyed the idea and attracted the readers to its contents. That was the articulation skill of Sri. Nambiar. He was always champion crusader of independent Bar. In his speech rendered in connection with the Platinum Jubilee of the Quilon Bar Association, 1983 he spoke “It is the duty of the lawyers, to give voice to silences, clarification to ambiguities and content to omissions. It is better to create than to be learned. Our opportunities to do good are our talent. Vigilance, tact, daring, force, persistence -these are the material virtues which must command success “ (Nambiar Miscellany -Page 134.)

In his article, the ‘Lawyer in the making’ he advised new entrants of the Bar “...while acting before a court, an Advocate shall conduct himself with dignity and self respect. He shall not be servile, but all the same, he shall maintain towards court a respectful attitude, bearing in mind that the dignity of the judicial office is essential for survival of the community” (Nambiar Miscellany - Page 107.)

When a practicing lawyer is being elevated as Judge, advice given  (“Q” Document of advice 2008 (1) KLT Journal 25) by Sri.Nambiar to the judge elevated shows the philosopher and guide in Sri.Nambiar.

He was also a munificent personality who kept aloof from publicity. The entire paraphernalia and furnishing of Senior Advocates Room in the Kerala High Court were sponsored by Sri. Nambiar in memory of his senior and father-in-law Sri Ayilyath Achuthan Nambiar. Books donated to the Kerala High Court Advocate’s Association for it’s Library shows his concern to the members of the Bar. As a lover of music and arts, he was the person who sponsored and revamped ‘Raganeethi’ a wing of ‘artists and musicians’ of the members of Kerala High Court Advocate’s Association.

His eminence and reputation will be cherished by all who knew him and those who will know him through law exposed by him as reflected in the law journals and his treaties.

Lend your ears when you are in crisis and standing in the corridors of the High Court, you can hear the whispering wisdom from the qualified soul.

It would be adventurous if an attempt is made to elucidate the towering qualities of Sri. Nambiar in two or three pages. This venture is only an attempt to refresh the memories of Nambiar within us.

Anayasena maranam                                   A\mtbtk\ acWw

Vina dainyena jeevanam                            hn\m ssZt\y\ Poh\w

Dehime kripaya shambo                      tZlnta Ir]bm iwt`m

Twayi bhaktim achanchala                        Xzbn `ànw AN©emw.

Lord almighty had always bestowed good health and peaceful life in his life time. Lord almighty was equally benevolent in providing a world hereafter rewarding him a smooth journey from worldly to heavenly abode.

Obituary Reference --  A Look and Outlook

(By A.S.P. Kurup, Advocate, High Court of Kerala)

I saw a letter dated 9.10.2012 written by the Registrar General of the High Court of Kerala to the Kerala High Court Advocates Association informing that “the High Court had decided to hold obituary reference of all designated Senior Advocates independently on Mondays and of Advocates other than designated Senior Advocates on Thursdays collectively up to 3 persons at Court No.1. It is also decided to reduce the two minutes silent prayer to one minute silent prayer.”

Right from the sanguine sunrise till the sunset in the glimmering west I pondered over the contents of that letter. Once the Journey comes to an end at the last inevitable hour, and the knell tolls, what difference is there between a designated Senior Advocate or ordinary advocates who are not designated to have separate obituary reference on Mondays and Thursdays. Designation of a Senior Advocate is a legal recognition by the High Court. But the real and the spontaneous recognition must come from the fellow members of the profession who are also learned and qualified to assess and evaluate the worth and value of every Senior Advocate on the basis of his unquestionable integrity, deep knowledge, dedication to the profession, strength of character, basic honesty and the inner wisdom emanating from him. Apparel cannot proclaim a lawyer. Unimpeachable knowledge is his power. There is an ocean of difference between the legal and real recognition of a Senior Advocate. One becomes a veteran or doyen at the Bar, not on the quality and texture of his gown but on the strength of his knowledge. If nobility is wasted and virtue is strangled, the gown cannot salvage him anymore.

The dead never knows whether he is honoured or insulted by the living. The funeral pyre or the grave yard do not know or identify the length of the gown or any Monday or Thursday. Once the indestructible is separated from the destructible or when the eternal goes out from the ephemeral, where can one search and find out an illuminating designated Senior Advocate or an eclipsed ordinary advocate for independent or collective reference.

True to the glorious history and well founded tradition of the Kerala High Court there existed a system of obituary reference for considerably long period in the past to hold the reference of a judge or lawyer on the next day after the cremation or burial was over. Increase of members in the profession and consequential deaths gradually yielded its way to collective reference at a very belated stage when the dead advocate is thrown to the pool of oblivion and the tears from the loving eyes have flown out.

Sri. P. Govinda Menon, a retired Judge of the High Court of Kerala died at the right old age of 75. The cruel hands of death snatched away the life of a very young advocate Sri. N. Balaraman Pillai at the very young age of 39. Cut to as that branch which might have grown straight and in whom a full lawyer might have bloomed. A Full Court reference was held on 12.11.1979 since it was to mourn the sad demise of a former Judge of our High Court. Obituary reference speech was made by the then Chief Justice Sri. V.P. Gopalan Nambiyar, Advocate General Sri. C.K. Sivasankara Panicker and Mr. V.R. Venkata Krishnan, President of Kerala High Court Advocates Association. It was a common reference for a retired Judge and a young lawyer on the sad demise (1979 KLT Journal 107). There was no illegality, impropriety or under estimation of the dead in any manner and no Judge or lawyer who participated in the reference found fault on that noble act of common reference.

Alas ! Sands of time filtered. Dimensions of time and space changed. After the passage of 33 years from the earlier Full Court reference, Sri. T.A. Narayanan Nair, who was also junior to late Sri. C.K. Sivasankara Panicker died on 7.9.2012 at the right age of 81. While the obituary reference of the former Chief Justice of India Sri. Ranganatha Mishra was held on 17.9.2012 by the High Court Sri. T.P. Kelu Nambiar also was dead. Both Sri. T.A. Narayanan Nair and Sri. T.P. Kelu Nambiar also could have been honoured had they been included in that reference. But the same was not possible because the cremation of Sri. T.P. Kelu Nambiar was not over by that time. Reference for Sri. T.A. Narayanan Nair was held separately on 4.10.2012, instead of including him in the earlier reference. Later on a separate reference was held for Sri. T.P. Kelu Nambiar on 8.10.2012.

At this sad moment when I write with shivering hand these random thoughts, from the bottom of my heart, on a piece of paper wet with my tears for three of our beloved brothers in the profession who are no more [Advocates Sri. Antony V Paul (52), Sri. John K Joseph alias Sajan (63) and Sri. M.M. Mathew (76)] and who are waiting for their day to be fixed by the High Court for an obituary reference in the evening of the court hours, I wish and pray to Lord Almighty that they be honored by all the judges and advocates together with 2 minutes silent prayers at 11 A.M. on the next working day when the court bell rings so that it shall be their benediction and honour in every respect. One hour each on Mondays and Thursdays also can be saved. The immeasurable may not be measured. Silence can speak eloquently and convey volumes than the words uttered by the mortals for the immortals!

A Tribute to Late Kelu Nambiar 

(By V.R. Venkatakrishnan, Sr.Advocate, High Court of Kerala)

The demise of T.P.Kelu Nambiar, has sent a shock to very many  persons like myself. We have been together in the bar for the last more than 50 years and his sudden departure have added to the poignancy of the sorrow. Among those who shifted from the Madras High Court in 1956, only two of us continued till 2012; now he has left and I am the only surviving lawyer. He was enrolled in 1954 while I was enrolled in 1949 and I knew him from his enrolment. He had one advantage in life, namely, that his father-in-law, late A.Achuthan Nambiar was a source of strength and encouragement to him while I ploughed only a lonely furrow, thanks of course to my late senior, revered N.Sundara Iyer.

Mr.Kelu Nambiar was a successful lawyer. We had differences of opinion but still we maintained a warm personal attachment which was mutual. We maintained high professional standards and for him he had many contacts in public sector and other public enterprises which contributed much to his success. In fact practical wisdom is an asset in the making of a successful lawyer.

Late Kelu Nambiar and myself had mutual warmth and affection and we agreed on many fundamental points. We were family friends and our families knew each other closely enough which bordered on intimacy. Late Kelu Nambiar’s better half is a Doctor who did not practise seriously. His two daughters are well placed and his only son is also well placed.

It is difficult to describe fully the personality of Kelu Nambiar in its fullness because of his many sided qualities. He maintained high standards professionally and otherwise. And there was discipline in the pursuit of the profession. In fact, he deserved many things in life. But that is not the basis for assessing his capacity. Mr. Kelu Nambiar had one more enviable asset; he knew Tamil very well; he knew to read and write and that brought him into the panorama of a bigger world of culture. He loved Carnatic Music to an enviable extent and these assets have brought him out in another larger periphery. He used to discuss and assess various Carnatic Music concerts on the stage as well as in the Radio. This brought us together in another rare atmosphere of mutual admiration.

I cannot find the words to express my deep sorrow and I feel more about the same because he was younger to me. We had many things in common which we cherished and it will take some time before I can reconcile myself to a world without Kelu.

May  His  Soul,  it  is  My  Solemn  Prayer,  Rest  in  Peace.