Full Judgment Text
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CASE NO.:
Writ Petition (crl.) 169 of 1999
Writ Petition (crl.) 243 of 1999
PETITIONER:
DADU @ TULSIDAS
Vs.
RESPONDENT:
STATE OF MAHARASHTRA
DATE OF JUDGMENT: 12/10/2000
BENCH:
K.T.Thomas, R.P. Sethi & S.N. Variava.
JUDGMENT:
SETHI, J:
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The Constitutional validity of Section 32A of the
Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as "the Act") is under challenge in
these petitions filed by the convicts of the offences under
the Act. The Section is alleged to be arbitrary,
discriminatory and violative of Articles 14 and 21 of the
Constitution of India which creates unreasonable distinction
between the prisoners convicted under the Act and the
prisoners convicted for the offences punishable under
various other statutes. It is submitted that the
Legislature is not competent to take away, by statutory
prohibition, the judicial function of the Court in the
matter of deciding as to whether after the conviction under
the Act the sentence can be suspended or not. The Section
is further assailed on the ground that it has negated the
statutory provisions of Sections 389, 432 and 433 of the
Code of Criminal Procedure (hereinafter referred to as "the
Code") in the matter of deciding as to whether after the
conviction under the Act the sentence can be suspended,
remitted or commuted or not and also under what
circumstances, restrictions or limitations on the suspension
of sentences or the grant of bail could be passed. It is
further contended that the Legislature cannot make relevant
considerations irrelevant or deprive the courts of their
legitimate jurisdiction to exercise the discretion. It is
argued that taking away the judicial power of the appellate
court to suspend the sentence despite the appeal meriting
admission, renders the substantive right of appeal illusory
and ineffective. According to one of the petitioners, the
prohibition of suspension precludes the Executive from
granting parole to a convict who is otherwise entitled to it
under the prevalent statutes, jail manual or Government
instructions issued in that behalf.
The petitioner in W.P.No.169/99 was arrested and upon
conviction under Section 21 of the Act sentenced to undergo@@
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imprisonment for 10 years. He claims to have already@@
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undergone sentence for more than 7 years. He could not
claim parole presumably under the impression that Section
32A of the act was a bar for the State to grant it. Though
the petitioner has referred to Maharashtra Jail Manual,
particularly Chapter XXXVIII providing various kinds of
remissions and authorising the grant of parole yet nothing
is on the record to show as to whether he in fact applied
for parole or not.
Petitioner in W.P.243 of 1999, after trial was convicted
under the Act and the bail application filed by him
alongwith appeal presented in the High Court was dismissed
as not pressed in view of the judgment of this Court in
Maktool Singh v. State of Punjab [JT 1999 (2) SC 176]. The
vires of the section have been defended by the Union of
India on the ground that as the Parliament has jurisdiction
to enact the law pertaining to Narcotic Drugs and
Psychotropic Substances Act, reasonable restrictions can be
imposed upon the right of the convict to file appeal and
seek release, remission or commutation. The Act is intended
to curb the drug addiction and trafficking which is termed
to be eating into the vitals of the economy of the country.
The illicit money generated by drug trafficking is being
used for illicit activities including encouragement of
terrorism. Anti-drug justice has been claimed to be a
criminal dimension of social justice. It is submitted that
statutory control over narcotic drugs in India was being
generally exercised through certain Central enactments,
though some of the States had also enacted certain statutes
to deal with illicit traffic in drugs. Reference is made to
the Opium Act and the Dangerous Drugs Act etc. In the
absence of comprehensive law to effectively control
psychotropic substances in the manner envisaged by the
International Convention of Psychotropic Substances, 1971, a
necessity was felt to enact some comprehensive legislation
on the subject. With a view to meet the social challenge of
great dimensions, the Parliament enacted the Act to
consolidate and amend the existing provisions relating to
control over drug abuse and to provide for enhanced
penalties under the Act. The Act provides enhanced and
stringent penalties. The offending section is claimed to be
not violative of Articles 14, 19 and 21 of the Constitution
of India. To fulfil the international obligations and to
achieve the objectives of curbing the menace of illegal
trafficking, the Section was enacted not only to take away
the power of the Executive under Section 433 of the Code but
also the power under the Code to suspend, remit or commute
the sentences passed under the Act. The convicts under the
Act are stated to be a class in themselves justifying the
discrimination without offending guarantee of equality
enshrined in the Constitution. To support the
Constitutional validity of the Section, the respondents have
also relied upon the Lok Sabha debates on the subject.
Before dealing with the main issue regarding the
validity of Section 32A, a side issue, projected in Writ
Petition No.169, is required to be dealt with. The writ
petition appears to be based upon the misconception of the
provisions of law and in ignorance to the various
pronouncements of this Court.
Parole is not a suspension of the sentence. The convict
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continues to be serving the sentence despite granting of
parole under the Statute, Rules, Jail Manual or the
Government orders. "Parole" means the release of a prisoner
temporarily for a special purpose before the expiry of a
sentence, on the promise of good behaviour and return to
jail. It is a release from jail, prison or other internment
after actually been in jail serving part of sentence.
Grant of parole is essentially an Executive function to
be exercised within the limits prescribed in that behalf.
It would not be open to the court to reduce the period of
detention by admitting a detenue or convict on parole.
Court cannot substitute the period of detention either by
abridging or enlarging it. Dealing with the concept of
parole and its effect on period of detention in a preventive
detention matter, this Court in Poonam Lata v. M.L.
Wadhawan [1987 (3) SCC 347] held:
"There is no denying of the fact that preventive
detention is not punishment and the concept of serving out a
sentence would not legitimately be within the purview of
preventive detention. The grant of parole is essentially an
executive function and instances of release of detenus on
parole were literally unknown until this Court and some of
the High Courts in India in recent years made orders of
release on parole on humanitarian considerations.
Historically ’parole’ is a concept known to military law and
denotes release of a prisoner of war on promise to return.
Parole has become an integral part of the English and
American systems of criminal justice intertwined with the
evolution of changing attitudes of the society towards crime
and criminals. As a consequence of the introduction of
parole into the penal system, all fixed-term sentences of
imprisonment of above 18 months are subject to release on
licence, that is, parole after a third of the period of
sentence has been served. In those countries, parole is
taken as an act of grace and not as a matter of right and
the convict prisoner may be released on condition that he
abides by the promise. It is a provisional release from
confinement but is deemed to be a part of the imprisonment.
Release on parole is a wing of the reformative process and
is expected to provide opportunity to the prisoner to
transform himself into a useful citizen. Parole is thus a
grant of partial liberty of lessening of restrictions to a
convict prisoner, but release on parole does not change the
status of the prisoner. Rules are framed providing
supervision by parole authorities of the convicts released
on parole and in case of failure to perform the promise, the
convict released on parole is directed to surrender to
custody. (See The Oxford Companion to Law, edited by
Walker, 1980 Edn. p.931; Black’s Law Dictionary, 5th Edn.,
P.1006; Jowitt’s Dictionary of English Law, 2nd Edn., Vol.
2, p.1320; Kenny’s Outlines of Criminal Law; 17th Edn.,
pp.574- 76; the English Sentencing System by Sir Rupert
Cross at pp.31-34; 87 et seq; American Jurisprudence, 2nd
Edn., Vol.59, pp.53-61; Corpus Juris Secundum, Vol.67;
Probation and Parole, Legal and Social Dimensions by Louis
P. Carney). It follows from these authorities that parole
is the release of a very long terms prisoner from a penal or
correctional institution after he has served a part of his
sentence under the continuous custody of the State and under
conditions that permit his incarceration in the event of
misbehaviour".
This position was again reiterated in State of Haryana
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v. Mohinder Singh [2000 (3) SCC 394].@@
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The Constitution Bench of this Court in Sunil Fulchand
Shah v. Union of India & Ors. [2000 (3) SCC 409]@@
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considered the distinction between bail and parole in the@@
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context of reckoning the period which a detenu has to
undergo in prison and held:
"Bail and parole have different connotation in law.
Bail is well understood in criminal jurisprudence and
Chapter XXXIII of the Code of Criminal Procedure contains
elaborate provisions relating to grant of bail. Bail is
granted to a person who has been arrested in a non-bailable
offence or has been convicted of an offence after trial.
The effect of granting bail is to release the accused from
internment though the court would still retain constructive
control over him through the sureties. In case the accused
is released on his own bond such constructive control could
still be exercised through the conditions of the bond
secured from him. The literal meaning of the word ’bail’ is
surety. In Halsbury’s Laws of England, 4th Edn., Vol.11,
Para 166, the following observation succinctly brings out
the effect of bail:
The effect of granting bail is not to set the defendant
(accused) at liberty but to release him from the custody of
law and to entrust him to the custody of sureties who are
bound to produce him to appear at his trial at a specified
time and place. The sureties may seize their principal at
any time and may discharge themselves by handing him over to
the custody of law and he will then be imprisoned.
’Parole’, however, has a different connotation than bail
even though the substantial legal effect of both bail and
parole may be the release of a person from detention or
custody. The dictionary meaning of "parole" is:
The Concise Oxford Dictionary - (New Edition)
"The release of a prisoner temporarily for a special
purpose or completely before the expiry of a sentence, on
the promise of good behaviour; such a promise; a word of
honour"
Black’s Law Dictionary - (6th Edition)
"Release from jail, prison or other confinement after
actually serving part of sentence. Conditional release from
imprisonment which entitles parolee to serve remainder of
his term outside confides of an institution, if he
satisfactorily complies with all terms and conditions
provided in parole order."
According to the Law Lexicon, "Parole" has been defined
as:
"A parole is a form of conditional pardon, by which the
convict is released before the expiration of his term, to
remain subject, during the remainder thereof, to supervision
by the public authority and to return to imprisonment on
violation of the condition of the parole."
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According to Words and Phrases:
"Parole" ameliorates punishment by permitting convict to
serve sentence outside of prison walls, but parole does not
interrupt sentence. People ex rel Rainone v. Murphy [135
NE 2d 567, 571, 1 NY 2d 367, 153 NYS 2d 21, 26].
’Parole does not vacate sentence imposed, but is merely
a conditional suspension of sentence. Wooden v. Goheen
[Ky, 255 SW 2d 1000, 1002].
A ’parole’ is not a ’suspension of sentence’, but is a
substitution, during continuance of parole, of lower grade
of punishment by confinement in legal custody and under
control of warden within specified prison bounds outside the
prison, for confinement within the prison adjudged by the
court. Jenkins v. Madigan [CA Ind, 211 F 2d 904, 906].
A ’parole’ does not suspend or curtail the sentence
originally imposed by the court as contrasted with a
’commutation of sentence’ which actually modifies it".
Again in State of Haryana v. Nauratta Singh & Ors.
[2000 (3) SCC 514] it was held by this Court as under:@@
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"Parole relates to executive action taken after the door has
been closed on a convict. During parole period there is no
suspension of sentence but the sentence is actually
continuing to run during that period also."
It is thus clear that parole did not amount to the
suspension, remission or commutation of sentences which
could be withheld under the garb of Section 32A of the Act.
Notwithstanding the provisions of the offending Section, a
convict is entitled to parole, subject, however, to the
conditions governing the grant of it under the statute, if
any, or the Jail Manual or the Government Instructions. The
Writ Petition No.169 of 1999 apparently appears to be
misconceived and filed in a hurry without approaching the
appropriate authority for the grant of relief in accordance
with jail manual applicable in the matter.
We will now deal with the crux of the matter relating to
the constitutional validity of Section 32A in the light of
the challenge thrown to it. Section 32A of the Act reads:
"32A. No suspension, remission or commutation in any
sentence awarded under this Act.- Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 or any
other law for the time being in force but subject to the
provisions of section 33, no sentence awarded under this Act
(other than section 27) shall be suspended or remitted or
commuted."
A perusal of the Section would indicate that it deals
with three different matters, namely, suspension, remission
and commutation of the sentences. Prohibition contained in
the Section is referable to Sections 389, 432 and 433 of the
Code. Section 432 of the Code provides that when any person
has been sentenced to punishment for an offence, the
appropriate Government may, at any time, without conditions
or upon conditions which the person sentenced accepts,
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suspend the execution of his sentence or remit the whole or
any part of the punishment to which he has been sentenced in
the manner and according to the procedure prescribed
therein. Section 433 empowers the appropriate Government to
commute:
"(a) a sentence of death, for any other punishment
provided by the Indian Penal Code;
(b) a sentence of imprisonment for life, for
imprisonment for a term not exceeding fourteen years or for
fine;
(c) a sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person might have
been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine."
However, Section 389 of the Code empowers an appellate
court to suspend the sentence pending the appeal and release@@
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the appellant on bail. Section 32A of the Act, therefore,@@
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takes away the powers both of the Appellate Court and the
State Executive in the matter of suspending, remitting and
commuting the sentence of a person convicted under the Act
other than for an offence under Section 27 of the Act. This
Court in Maktool Singh’s case (supra) held that Section 32A
of the Act was a complete bar for the Appellate Court to
suspend a sentence passed on persons convicted of offences
under the Act (except under Section 27) either during the
pendency of any appeal or otherwise. It has an overriding
effect with regard to the powers of suspension, commutation
and remission provided under the Code. After referring to
some conflicting judgments of the High Courts, this Court
concluded: "The upshot of the above discussion is that
Section 32A of the Act has taken away the powers of the
court to suspend a sentence passed on persons convicted of
offences under the Act (except Section 27) either during
pendency of any appeal or otherwise. Similarly, the power
of the Government under Sections 432, 433 and 434 of the
Criminal Procedure Code have also been taken away. Section
32A would have an overriding effect with regard to the
powers of suspension, commutation and remission provided
under the Criminal Procedure Code."
The restriction imposed under the offending Section,
upon the Executive are claimed to be for a reasonable
purpose and object sought to be achieved by the Act. Such
exclusion cannot be held unconstitutional, on account of its
not being absolute in view of the constitutional powers
conferred upon the Executive. Articles 72 and 161 of the
Constitution empowers President and the the Governor of a
State to grant pardons, reprieves, respites or remissions of
punishments or to suspend, remit or commute the sentence of
any person convicted of any offence against any law relating
to a matter to which the Executive power of the Union and
State exists. For the exercise of aforesaid constitutional
powers circulars are stated to have been issued by the
appropriate Governments. It is further submitted that the
circulars prescribe limitations both as regards the
prisoners who are eligible and those who have been excluded.
The restriction imposed upon the Executive, under the
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Section, appears to be for a reasonable purpose and object
sought to be achieved by the Section. While moving the
Amendment Bill, which included Section 32A, in the
Parliament on 16th December, 1988, the Minister of State in
Department of Revenue in the Ministry of Finance explained
to the Parliament that the country had been facing the
problem of transit traffic in illicit drugs which had been
escalated in the recent past. The spill-over from such
traffic had been causing problems of abuse and addiction.
The Government was concerned with the developing drug
situation for which a number of legislative, administrative
and preventive measures had been taken resulting in checking
the transit traffic to a considerable extent. However,
increased internal drug traffic, diversion of opium from
illicit growing areas and attempts of illicit manufacture of
drugs within the country threatened to undermine the effects
of the counter measures taken. Keeping in mind the
magnitude of the threat from drug trafficking from the
Golden Crescent region comprising Pakistan, Afghanistan and
Iran and the Golden Triangle region comprising Burma,
Thailand and Laos and having regard to the internal
situation, a 14 point directive was stated to have been
issued by the then Prime Minister on 4th April, 1988, as a
new initiative to combat drug trafficking and drug abuse.
Keeping in mind the working of the 1985 Act, the Cabinet Sub
Committee recommended that the Act be suitably amended,
inter alia, :
"(i) to provide for the constitution of a fund for
control of drug abuse and its governing body. The Fund is
to be financed by such amounts as may be provided by the
Parliament, the sale proceeds of any property forfeited
under the Act and any grants that may be made by any person
or institution;
(ii) to provide for death penalty on second conviction
in respect of specified offences involving specified
quantities of certain drugs;
(iii) to provide that no sentence awarded under the Act,
other than section 27, should be suspended, remitted or
commuted;
(iv) to provide for constitution of Special Courts;
(v) to provide that every offence punishable under this
Act shall be cognizable and non-bailable;
(vi) to provide immunity from prosecution to the addicts
volunteering for treatment for deaddiction or detoxification
once in their life time;
(vii) to bring certain substances which are neither
narcotic drugs nor psychotropic substances but are used in
the manufacture or production of these drugs or substances,
under the ambit of the Act. Such controlled substances
would be regulated by issue or order;
(viii) violation of the provisions relating to the
controlled substances would be liable for punishment with
rigorous imprisonment for a term which may extend to 10
years and fine which may extend to Rs.1 lakh;
(ix) financing illicit traffic and harbouring drug
offenders would be offences liable to punishment at the same
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level as per drug traffic offences."
The distinction of the convicts under the Act and under
other statutes, in so far as it relaters to the exercise of
the Executive Powers under Sections 432 and 433 of the Code
is concerned, cannot be termed to either arbitrary or
discriminatory being violative of Article 14 of the
Constitution. Such deprivation of the Executive can also
not be stretched to hold that the right to life of a person
has been taken away except, according to the procedure
established by law. It is not contended on behalf of the
petitioners that the procedure prescribed under the Act for
holding the trial is not reasonable, fair and just. The
offending Section, in so far as it relates to the Executive
in the matter of suspension, remission and commutation of
sentence, after conviction, does not, in any way, encroach
upon the personal liberty of the convict tried fairly and
sentenced under the Act. The procedure prescribed for
holding the trial under the Act cannot be termed to be
arbitrary, whimsical or fanciful. There is, therefore, no
vice of unconstitutionality in the Section in so far as it
takes away the powers of the Executive conferred upon it
under Sections 432 and 433 of the Code, to suspend, remit or
commute the sentence of a convict under the Act.
Learned counsel appearing for the parties were more
concerned with the adverse effect of the Section on the@@
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powers of the judiciary. Impliedly conceding that the@@
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Section was valid so far as it pertained to the appropriate
Government, it was argued that the Legislature is not
competent to take away the judicial powers of the Court by
statutory prohibition as is shown to have been done vide the
impugned section. Awarding sentence, upon conviction, is
concededly a judicial function to be discharged by the
courts of law established in the country. It is always a
matter of judicial discretion, however, subject to any
mandatory minimum sentence prescribed by the law. The award
of sentence by a criminal court wherever made subject to the
right of appeal cannot be interfered or intermeddled with in
a way which amounts to not only interference but actually
taking away the power of judicial review. Awarding the
sentence and consideration of its legality or adequacy in
appeal is essentially a judicial function embracing within
its ambit the power to suspend the sentence under the
peculiar circumstances of each case, pending the disposal of
the appeal.
Not providing atleast one right of appeal, would negate
the due process of law in the matter of dispensation of
criminal justice. There is no doubt that the right of
appeal is the creature of a statute and when conferred, a
substantive right. Providing a right of appeal but totally
disarming the court from granting interim relief in the form
of suspension of sentence would be unjust, unfair and
violative of Article 21 of the Constitution particularly
when no mechanism is provided for early disposal of the
appeal. The pendency of criminal litigation and the
experience in dealing with pending matters indicate no
possibility of early hearing of the appeal and its disposal
on merits atleast in many High Courts. As the present is
not the occasion to dilate on the causes for such delay, we
restrain ourselves from that exercise. In this view of the
matter, the appellate powers of the court cannot be denuded
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by Executive or judicial process.
This Court in Bhagwan Rama Shinde Gosai & Ors. v.
State of Gujarat [AIR 1999 SC 1859 held that when a
convicted person is sentenced to a fixed period of sentence
and the appellate court finds that due to practical reasons
the appeal cannot be disposed of expeditiously, it can pass
appropriate orders for suspension of sentence. The
suspension of the sentence by the appellate court has,
however, to be within the parameters of the law prescribed
by the Legislature or spelt out by the courts by judicial
pronouncements. The exercise of judicial discretion on well
recognised principles is the safest possible safeguards for
the accused which is at the very core of criminal law
administered in India. The Legislature cannot, therefore,
make law to deprive the courts of their legitimate
jurisdiction conferred under the procedure established by
law.
Thomas M. Cooley in his "Treatise on the Constitutional
Limitations" 8th Edition observed that if the Legislature
cannot thus indirectly control the action of the courts by
requiring of them a construction of the law according to its
own views, it is very plain it cannot do so directly, by
setting aside their judgments, compelling them to grant new
trials, ordering the discharge of offenders, or directing
what particular steps shall be taken in the progress of a
judicial inquiry. In Denny v. Mattoon[2 Allen, 361], it
was stated:
"If, for example, the practical operation of a statute
is to determine adversary suits pending between party and
party, by substituting in place of the well settled rules of
law the arbitrary will of the legislature, and thereby
controlling the action of the tribunal before which the
suits are pending, no one can doubt that it would be an
unauthorised act of legislation, because it directly
infringes on the peculiar and appropriate functions of the
judiciary. It is exclusive province of courts of justice to
apply established principles to cases within their
jurisdiction, and to enforce their decisions by rendering
judgments and executing them by suitable process. The
legislature have no power to interfere with this
jurisdiction in such manner as to change the decision of
cases pending before courts, or to impair or set aside their
judgments, or to take cases out of the settled course of
judicial proceeding. It is on this principle that it has
been held that the legislature have no power to grant a new
trial or direct a rehearing of a cause which has been once
judicially settled. The right of a review, or to try a new
facts which have been determined by a verdict or decree,
depends on fixed and well-settled principles, which it is
the duty of the court to apply in the exercise of a sound
judgment and discretion. These cannot be regulated or
governed by legislative action".
Cooley further opined that forfeiture of rights and
property cannot be adjudged by legislative act,
confiscations without a judicial hearing after due notice
would be void as not being due process of law. Rights of
the parties, without the authority of passing consequential
or interim orders in the interest of justice, would not be a
substantive one.
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Offending Section is stated to have been enacted in
discharge of the international obligations as claimed by the
concerned Minister in the Parliament. This submission also
appears to be without any substance. Countries, parties to
the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, 1988, in the 6th
Plenary Meeting held on 19th December, 1988 resolved to
adopt means and measures to curb the rising trend in the
illicit production of demand for and traffic in narcotic
drugs and psychotropic substances which posed a serious
threat to the health and welfare of the human beings and
adversely affected the economic, cultural and political
foundations of the Society. The member countries, inter
alia agreed to adopt such measures as may be necessary to
establish as criminal offences in its domestic law when
committed intentionally:
"(a) (i) The production, manufacture, extraction,
preparation, offering, offering for sale, distribution,
sale, delivery on any terms whatsoever, brokerage, dispatch,
dispatch in transit, transport, importation or exportation
of any narcotic drug or any psychotropic substance contrary
to the provisions of the 1961 Convention, the 1961
Convention as amended or the 1971 Convention;
ii) The cultivation of opium poppy, coca bush or
cannabis plant for the purpose of the production of narcotic
drugs contrary to the provisions of the 1961 Convention and
1961 Convention as amended;
iii) The possession or purchase of any narcotic drug or
psychotropic substance for the purpose of any of the
activities enumerated in (i) above;
iv) The manufacture, transport, or distribution of
equipment, materials or of substances listed in Table I and
Table II, knowing that they are to be used in or for the
illicit cultivation, production or manufacture of narcotic
drugs or psychotropic substances;
v) The organisation, management or financing of any of
the offences enumerated in (i), (ii), (iii) or (iv) above;
(b) (i) The conversion or transfer of property, knowing
that such property is derived from any offence or offences@@
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established in accordance with subparagraph (a) of this
paragraph, or from an act, of participation in such offence
or offences, for the purpose of concealing or disguising the
illicit original of the property or of assisting any person
who is involved in the commission of such an offence or
offences to evade the legal consequences of his actions,
iii) The concealment or disguise of the true nature,
source, location, disposition, movement rights with respect
to, or ownership of property, knowing that such property is
derived from an offence or offences established in
accordance with paragraph (a) of this paragraph or from an
act of participation in such an offence or offences;
It was further agreed that subject to the constitutional
principles and the basic concept of its legal system each
country shall provide for:
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"(i) The acquisition, possession or use of property,
knowing, at the time of receipt, that such property was
derived from an offence or offences established in
accordance with subparagraph (a) of this paragraph or from
an act of participation in such offence or offences;
(ii) The possession of equipment or materials or
substances listed in Table I and Table II, knowing that they
are being or are to be used in or for the illicit
cultivation, production or manufacture of narcotic drugs or
psychotropic substances;
(iii)Publicly inciting or inducing others, by any means,
to commit any of the offences established in accordance with
this article or to use narcotic drugs or psychotropic
substances illicitly;
(iv) Participation in, association or conspiracy to
commit, attempts to commit and aiding, facilitating and
counselling the commission of any of the offences
established in accordance with this article."
The parties to the Convention further resolved to
provide in addition to conviction and punishment for an
offence that the offender shall undergo measures such as
treatment, education, after care, rehabilitation or social
re-integration. It was further agreed: "The parties shall
endeavour to ensure that any discretionary legal powers
under their domestic law relating to the prosecution of
persons for offences established in accordance with this
article are exercised to maximize the effectiveness of law
enforcement measures in respect of those offences and with
due regard to the need to deter the commission of such
offences.
The parties shall ensure that their courts or other
competent authorities bear in mind the serious nature of the
offences enumerated in paragraph 1 of this article and the
circumstances enumerated in paragraph 5 of this article when
considering the eventuality of early release or parole of
persons convicted of such offences." A perusal of the
agreement of the Convention to which India is claimed to be
a party, clearly and unambiguously show that the court’s
jurisdiction with respect to the offences relating to
narcotic drugs and psychotropic substances was never
intended to be ousted, taken away or curtailed. The
Declaration was made, subject to "constitutional principles
and the basic concepts of its legal system prevalent in the
polity of a member country". The international Agreement
emphasised that the courts of the member countries shall
always bear in mind the serious nature of offences sought to
be tackled by the Declaration while considering the
eventuality of early release or partly of persons convicted
of such offences. There was no International Agreement to
put a blanket ban on the power of the court to suspend the
sentence awarded to a criminal under the Act notwithstanding
the constitutional principles and basic concepts of its
legal system. It cannot be denied that judicial review in
our country is the heart and soul of our constitutional
scheme. The judiciary is constituted the ultimate
interpreter of the Constitution and is assigned the delicate
task of determining the extent and scope of the powers
conferred on each branch of the Government, ensuring that
action of any branch does not transgress its limits. A
Constitution Bench of this Court in S.P. Sampath Kumar v.
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Union of India [1987 (1) SCC 124] held that "it is also a
basic principle of the Rule of Law which permeates very
provision of the Constitution and which forms its very core
and essence that the exercise of power by the executive or
any other authority must not only be conditioned by the
Constitution but also be in accordance with law and it is
the judiciary which has to ensure that the law is observed
and there is compliance with the requirements of law on the
part of the executive and other authorities. This function
is discharged by the judiciary by exercise of the power of
judicial review which is a most potent weapon in the hands
of the judiciary for maintenance of the Rule of Law. The
power of judicial review is an integral part of our
constitutional system and without it, there will be no
government of laws and the Rule of Law would become a
teasing illusion and a promise of unreality". Again in S.S.
Bola & Ors. v. B.D. Sardana & Ors. [AIR 1999 SC 3127] it
was reiterated that judicial review is the basic feature
upon which hinges the checks and balances blended with hind
sight in the Constitution as people’s sovereign power for
their protection and establishment of egalitarian social
order under the rule of law. The judicial review was,
therefore, held to be an integral part of the Constitution
as its basic structure. Similarly, the filing of an appeal,
its adjudication and passing of appropriate interim orders
is concededly a part of the legal system prevalent in our
country.
In Ram Charan v. Union of India [1991(9) LCD 160], the
Allahabad High Court while dealing with the question of the@@
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constitutional validity of Section 32A found that as the@@
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Section leaves no discretion to the court in the matter of
deciding, as to whether, after conviction the sentence
deserves to be suspended or not without providing any
guidelines regarding the early disposal of the appeal within
a specified period, it suffers from arbitrariness and thus
violative of mandate of Articles 14 and 21 of the
Constitution. In the absence of right of suspending a
sentence, the right of appeal conferred upon accused was
termed to be a right of infructuous appeal. However,
Gujarat High Court in Ishwarsingh M. Rajput v. State of
Gujarat [1990 (2) Gujarat Law Reporter 1365 =1991(2) Crimes
160] while dealing with the case relating to grant of parole
to a convict under the Act found that Section 32A was
Constitutionally valid. It was held:
"Further, the classification between the prisoners
convicted under the Narcotics Act and the prisoners
convicted under any other law, including the Indian Penal
Code is reasonable one, it is with specific object to curb
deterrently habit forming, booming and paying (beyond
imagination) nefarious illegal activity in drug trafficking.
Prisoners convicted under the Narcotics Act are class by
themselves. Their activities affect the entire society and
may, in some cases, be a death-blow to the persons, who
become addicts. It is much more paying as it brings
unimaginable easy riches. In this view of the matter, the
temptation to the prisoner is too great to resist himself
from indulging in same type of activity during the period,
when he is temporarily released. In most of the cases, it
would be difficult for him to leave that activity as it
would not be easy for the prisoner to come out of the
clutches of the gang, which operates in nefarious illegal
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activities. Hence, it cannot be said that section 32A
violates Article 14 of the Constitution on the ground that
it makes unreasonable distinction between a prisoner
convicted under the Narcotic Act and a prisoner convicted
for any other offences."
Judged from any angle, the Section in so far as it
completely debars the appellate courts from the power to
suspend the sentence awarded to a convict under the Act
cannot stand the test of constitutionality. Thus Section
32A in so far as it ousts the jurisdiction of the court to
suspend the sentence awarded to a convict under the Act is
unconstitutional. We are, therefore, of the opinion that
Allahabad High Court in Ram Charan’s case (Supra) has
correctly interpreted the law relating to the constitutional
validity of the Section and the judgment of Gujarat High
Court in Ishwarsingh M. Rajput’s case cannot be held to be
good law.
Despite holding that Section 32A is unconstitutional to
the extent it affects the functioning of the criminal courts
in the country, we are not declaring the whole of the
section as unconstitutional in view of our finding that the
Section, in so far as it takes away the right of the
Executive to suspend, remit and commute the sentence, is
valid and intra vires of the Constitution. The Declaration
of Section 32A to be unconstitutional, in so far as it
affects the functioning of the courts in the country, would
not render the whole of the section invalid, the restriction
imposed by the offending section being distinct and
severable.
Holding Section 32A as void in so far as it takes away
the right of the courts to suspend the sentence awarded to a@@
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convict under the Act, would neither entitle such convicts@@
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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. Section 37 of the Act provides:
"37. Offences to be cognizable and non-bailable (1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973--
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for a
term of imprisonment of five years or more under this Act
shall be released on bail or on his own bond unless--
i) the Public Prosecutor has been given an opportunity
to oppose the application for such release, and
ii) where the Public Prosecutor opposes the application,
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.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure, 1973 or
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any other law for the time being in force, on granting of
bail.
This Court in Union of India v. Ram Samujh & Anr.
[1999 (9) SCC 429] held that the jurisdiction of the court@@
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to grant bail is circumscribed by the aforesaid section of@@
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the Act. The bail can be granted and sentence suspended in
a case where there are reasonable grounds for believing that
the accused is not guilty of the offence for which convicted
and he is not likely to commit any offence while on bail and
during the period of suspension of the sentence. The Court
further held:
"The aforesaid section is incorporated to achieve the
object as mentioned in the Statement of Objects and Reasons
for introducing Bill No.125 of 1988 thus:
"Even though the major offences are non-bailable by
virtue of the level of punishments, on technical grounds,
drug offenders were being released on bail. In the light of
certain difficulties faced in the enforcement of the
Narcotic Drugs and Psychotropic Substances Act, 1985 the
need to amend the law to further strengthen it, has been
felt".
(emphasis supplied)
It is to be borne in mind that the aforesaid legislative
mandate is required to be adhered to and followed. It
should be borne in mind that in a murder case, the accused
commits murder of one or two persons, while those persons
who are dealing in narcotic drugs are instrumental in
causing death or in inflicting death-blow to a number of
innocent young victims, who are vulnerable; it causes
deleterious effects and a deadly impact on the society;
they are hazard to the society; even if they are released
temporarily, in all probability, they would continue their
nefarious activities of trafficking and/or dealing in
intoxicants clandestinely. Reason may be large stake and
illegal profit involved. This Court, dealing with the
contention with regard to punishment under the NDPS Act, has
succinctly observed about the adverse effect of such
activities in Durand Dilier v. Chief Secretary, Union
Territory of Goa [1990 (1) SCC 95] as under: (SCC p.104,
para 24)
"24, With deep concern, we may point out that the
organised activities of the underworld and the clandestine
smuggling of narcotic drugs and psychotropic substances into
this country and illegal trafficking in such drugs and
substances have led to drug addiction among a sizeable
section of the public, particularly the adolescents and
students of both sexes and the menance has assumed serious
and alarming proportions in the recent years. Therefore, in
order to effectively control and eradicate this
proliferating and booming devastating menace, causing
deleterious effects and deadly impact on the society as a
whole, Parliament in its wisdom, has made effective
provisions by introducing this Act 81 of 1985 specifying
mandatory minimum imprisonment and fine."
8. To check the menance of dangerous drugs flooding the
market, Parliament has provided that the person accused of
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offences under the NDPS Act should not be released on bail
during trial unless the mandatory conditions provided in
Section 37, namely,
i) there are reasonable grounds for believing that the
accused is not guilty of such offence; and
ii) that he is not likely to commit any offence while on
bail.
are satisfied."
Under the circumstances the writ petitions are disposed
of by holding that (1) Section 32A does not in any way
affect the powers of the authorities to grant parole; (2)
It is unconstitutional to the extent it takes away the right
of the court to suspend the sentence of a convict under the
Act; (3) Nevertheless, a sentence awarded under the Act can
be suspended by the appellate court only and strictly
subject to the conditions spelt out in Section 37 of the Act
as dealt with in this judgment.
The petitioner in Writ Petition No.l69/99 shall be at
liberty to apply for parole and his prayer be considered and
disposed of in accordance with the statutory provisions, if
any, Jail Manual or Government Instructions without implying
Section 32A of the Act as a bar for consideration of the
prayer. Similarly petitioner in Writ Petition No.243/99 is
at liberty to move the High Court for suspension of sentence
awarded to him under the Act. As and when any such
application is filed, the same shall be disposed of in
accordance with law and keeping in view the limitations
prescribed under Section 37 of the Act and the law laid down
by this Court.