Questions and answers on law (Part 74)

Q 1:-  What is "tenant holding over" ?

 A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord's consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will.

Q 2:- What is procedure if JD is arrested and to be sent to civil prison as per cpc in indian law?

Ans:- Under the Code of Civil Procedure (CPC), 1908, a Judgment Debtor (JD) arrested for debt non-payment must be immediately brought before the court. The court must inform them of their right to apply for insolvency; if they do so and furnish security, they may be released. Detention occurs in the local civil prison if they fail to pay or show cause. 

Key Procedures for Arrest and Detention (Sections 55-59 & Order XXI, CPC):

• Arrest Procedure: The JD can be arrested at any hour/day. However, no dwelling house can be entered after sunset/before sunrise. If a room is occupied by a woman not the JD, she must be given a reasonable time to withdraw.
• Immediate Action: The officer must bring the arrested JD before the court as soon as possible. If the decree is for money, the JD can pay the amount and costs to the arresting officer and be released immediately.
• Court Proceedings: The court will inquire into the JD's ability to pay and reasons for non-payment.
• Insolvency Option: The court will inform the JD of their right to apply for insolvency. If they declare an intention to do so and furnish security, they may be released.
• Detention in Civil Prison: If the JD does not pay, show cause, or file for insolvency, the court orders detention:
  • Over ₹5,000: Up to 3 months.
  • ₹2,000 to ₹5,000: Up to 6 weeks.
  • Under ₹2,000: No detention allowed.
• Release: The JD is released upon full payment of the decree amount, costs, or if the decree holder fails to pay subsistence allowance.
• Exemptions: Women, minors, and certain public servants cannot be arrested in execution of a money decree. 

If the JD is too ill for detention, the court may release them, though they may be re-arrested later. 

Q 3:- Whether the benefit of probation of offender act can be extended to the accused against whom charges are proved under the provision of the NDPS Act?

Ans:- No, the benefit of the Probation of Offenders Act, 1958 (PO Act) cannot be extended to an accused convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) in most cases.

Key Statutory Provision

Section 33 of the NDPS Act explicitly states that nothing in Section 360 of the CrPC, 1973, or the PO Act applies to a person convicted under the NDPS Act unless the offender is under 18 years of age or convicted under Section 26 (acts by licensees) or Section 27 (consumption of narcotic drugs or psychotropic substances). This provision overrides the general applicability of the PO Act to ensure stringent penalties for drug-related offenses.

Judicial Interpretation

Indian courts, including the Supreme Court and High Courts, have consistently held that probation benefits are barred for NDPS convicts outside these exceptions. For instance, convictions under Sections 18, 20, or 21 (common NDPS offenses) do not qualify, emphasizing the Act's deterrent intent.

Exceptions

Probation may apply only to juveniles under 18 or minor offenses under Sections 26/27, but not for serious charges like possession, trafficking, or cultivation where proof establishes guilt. Section 4 of the PO Act itself excludes offenses punishable with death or life imprisonment, common in NDPS cases involving commercial quantities.

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