Dadu @
Tulsidas Vs. State of Maharashtra [2000] INSC 511 (12 October 2000)
Writ Petition (crl.) 243 of 1999
K.T.Thomas,
R.P. Sethi & S.N. Variava.
SETHI,
J:
L.I.T.J
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 imprisonment for 10 years. He
claims to have already 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 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 v. Mohinder Singh [2000 (3) SCC 394].The
Constitution Bench of this Court in Sunil Fulchand Shah v. Union of India &
Ors. [2000 (3) SCC 409] considered the distinction between bail and parole in the 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." 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: "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, 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 the appellant on
bail. Section 32A of the Act, therefore, 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 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 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 powers of
the judiciary. Impliedly conceding that the
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 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.
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 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:
"(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.
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 constitutional validity of
Section 32A found that as the 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 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 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. 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 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 to grant bail is circumscribed by
the aforesaid section of 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 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.
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