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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.