BUDH SINGHversusSTATE OF HARYANA AND ANR.

                          [2013] 2 S.C.R. 272


A                            BUDH SINGH
                                    v.
                  STATE OF HARYANA AND ANR.
              (Writ Petition (Criminal) No. 15 of 2012)
                           MARCH 11, 2013
B
           [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

        Narcotic Drugs and Psychotropic Substances Act, 1985:

c        s. 32-A (as introduced w.e.f. 29.5.1989) - Sentences
  awarded under the Act not to be suspended, remitted or
  commuted - Effect of - Accused convicted u/s 15 on
   27. 7. 1990 for offence committed on 13. 12. 1988 - Held: There
  is no vice of unconstitutionality in the section insofar as it takes
  away the powers of the executive conferred upon it ulss 432
0
  ana 433 CrPC to suspend, remit or commute the sentence
  of a convict under the Act - Exclusion of benefit of remission
  cannot be understood to have the effect of enlarging the
  period of incarceration of an accused convicted under the Act
E - Nor can s. 32-A have the effect of making a convict undergo
  a longer period of sentence than what the Act had
  contemplated at the time of commission of the offence.

       The petitioner, who was convicted u/s 15 of the
  Narcotic Drugs and Psychotropic Substances Act, 1985
F on 27.7.1990, filed the instant writ petition challenging the
  constitutional validity of 32-A of the Act on the ground
  that the exclusion of benefit of remission by introduction
  of s.32-A would have the effect of making the petitioner
  undergo a longer period of incarceration than what was
G visualized by the Act as prevailing on the date of alleged
  commission of the crime by him i.e. 13.12.1988. The
  question for consideration before the Court was:
  "whether the remission(s) earned by a convict operates
  as a reduction of the sentence."
H                                 272
  BUDH SINGH v. STATE OF HARYANA AND ANR.               273


     Dismissing the writ petition, the Court                   A

    HELD: 1.1 Insofar as the challenge to s. 32-A of the
NDPS Act founded on violation of Arts. 14 and 21 of the
Constitution of India, 1950 is concerned, in Dadu alias
Tulsldas* this Court has held that there is no vice of         8
unconstitutionality in the section insofar as it takes away
the powers of the executive conferred upon it u/ss 432
and 433 CrPC to suspend, remit or commute the
sentence of a convict under the Act. [para 2] (275-8-C, G;
276-A]
                                                               c
    *Dadu alias Tulsidas vs. State of Maharashtra (2000) 8
sec 437 - relied on.
      1.2 With regard to challenge founded on alleged
 violation of Art. 20(1) of the Constitution, s.32-A of NDPS   o
 Act ex facie has nothing to do with the punishment or
 penalty imposed under the Act. In fact, no change or
 alteration in the severity of the penalty under the NDPS
 Act has been brought about by the introduction of s. 32A
 with effect from 29.05.1989. Whats. 32A has done is to        E
 obliterate the benefit of remission(s) that a convict under
 the NDPS Act would have normally earned. The correct
 legal position, as has been held by this Court in Sarat
 Chandra Rabha's case is that the remission(s) do not in
 any way touch or affect the penalty/sentence imposed by
 a court. In view of this settled position of law, the         F
 exclusion of benefit of remission cannot be understood
 to have the effect of enlarging the period of incarceration
 of an accused convicted under the NDPS Act. Nor can
's. 32A have the effect of making a convict undergo a
 longer period of sentence than what the Act had               G
 contemplated at the time of commission of the offence.
 (para 9] (279-B-E]

     Sarat Chandra Rabha and Others vs. Khagendranath
Nath and Others 1961 SCR 133 =AIR 1961 Supreme Court           H
    274       SUPREME COURT REPORTS                 [2013] 2 S.C.R.


A 334; Maru Ram vs. Union of India and Others (1981) 1 SCC
  107· relied on
                           Case Law Reference:
          (2000) 8 sec 437          relied on              para 2
B
          1961 SCR 133              relied on              para 5
          (1981) 1 sec 101          relied on              para 9

        CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
c   No. 15 of 2012.

          Under Article 32 of the Constitution of India.

          K.G. Bhagat, Divya Shukla, Dattatray Vyas, Vineet Bhagat
    for the Petitioner.
D
        Nupur Choudhary, Kamal Mohan Gupta for the
    Respondents.

          The Judgment of the Court was delivered by

E      RANJAN GOGOi, J. 1. The petitioner has been convicted
  under Section 15 of the Narcotic Drugs and Psychotropic
  Substances Act, 1985 (hereinafter for short "the NDPS Act")
  by an order of the learned Sessions Judge, Sirsa, Haryana
  dated 27.7.1990. He has been sentenced to undergo RI for a
F period of 10 years and also to pay a fine of Rs. 1,00,000/- (One
  lakh only). in default, to suffer further RI for a period of 3 years.
  The said order has been confirmed in appeal. The petitioner,
  on the date of the filing of the present writ petition, had
  undergone custody for a period of more than 7 years. He
G contends that taking into account the remissions which would
  have been due to him under different Government Notifications/
  Orders issued from time to time he would have been entitled
  to be released from prison. However, by virtue of the                   •
  provisions of Section 32A of the NDPS Act, the benefit of such
H remissions have been denied to him resulting in his continued
     BUDH SINGH v. STATE OF HARYANA AND ANR.                   275
                [RANJAN GOGOi, J.]
custody. Consequently, by means of this writ petition under            A
Article 32 of the Constitution, he has challenged the
constitutional validity of Section 32A of the NDPS Act, inter-
alia, on the ground that the said provision violates the
fundamental rights of the petitioner under Articles 14, 20(1) and
21 of the Constitution.                                                B

     2. Insofar as the challenge founded on violation of Articles
14 and 21 is concerned, the issue stands squarely covered by
the decision of this Court in Dadu alias Tulsidas vs. State of
Maharashtra 1• The following extract from para 15 from the
decision in Dadu (supra) which deals with the contentions C
advanced on the basis of Articles 14 and 21 and the views of
this Court on the said contentions amply sums up the situation.

      "The distinction of the convicts under the Act and under
      other statutes, insofar as it relates to the exercise of         o
      executive powers under Sections 432 and 433 of the Code
      is concerned, cannot be termed to be 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      E
      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, insofar as it relates to the executive in     F
      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 f(!irly 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   G
      of unconstitutionality in the section insofar as it takes away
      the powers of the executive conferred upon it under


1.   (2000) a sec 437.                                                 H
     ---
    276       SUPREME COURT REPORTS                [2013] 2 S.C.R.


A         Sections 432 and 433 of the Code, to suspend, remit or
          commute the sentence of a convict under the Act."

       3. It is to the challenge founded on alleged violation of
  Article 20(1) that the attention of the Court will have to be
  primarily focused in the present case. Article 20(1) is in the
B following terms :

          "20. Protection in respect of conviction for offences.-
          ( 1) No person shall be convicted of any offence except for
          violation of a law in force at the time of the commission of
C         the act charged as an offence, nor be subjected to a
          penalty greater than that which might have been inflicted
          under the law in force at the time of the commission of the
          offence."

        4. It has been argued on behalf of the petitioner that though
0
  the petitioner has been sentenced to undergo RI for a period
  of 10 years on being found guilty under Section 15 of the NDPS
  Act, the said period of imprisonment must be understood to be
  subject to such remissions to which the petitioner would have
  been entitled to in the normal course. However, Section 32A
E of the NDPS Act by denying the benefit of remissions has, in
  fact, enlarged the period of incarceration. According to the
  petitioner, he is alleged to have committed the offence under
  the NDPS Act on 13.12.1988 and was convicted of the ·said
  offence by the learned Trial Court and sentenced accordingly
F on 27.7.1990. Section 32A of the NDPS Act was brought into
  the statute book by an amendment to the Act with effect from
- 29.5.1989. Therefore, according to the petitioner, the benefit
  of remissions of sentences under the Act being permissible on
  the date when he is alleged to have committed the offence, i.e.,
G 13.12.1988, the exclusion of the said benefit by the introduction
  of Section 32A with effect from 29.5.1989 has the effect of
  making the petitioner undergo a longer period of incarceration
  than what was visualized by the Act as prevailing on the date
  of the alleged commission of the crime by the petitioner.
H
     BUDH SINGH v. STATE OF HARYANA AND ANR.               277
                [RANJAN GOGOi, J.]

      5. The answer to the above issue raised by the petitioner   A
would depend on the true and correct meaning of the effect of
the period/periods of remissions earned by a convict under
Section 432 of the Code of Criminal Procedure on the sentence
or penalty that may have been imposed by a court of competent
jurisdiction. Specifically, the question that arises is whether   B
the remission(s) earned by a convict operates as a reduction
of the sentence. The issue arising, is no longer res integra
having been dealt with by a decision of this Court of somewhat
old vintage in Saraf Chandra Rabha and Others vs.
Khagendranath Nath and Others2.                                   c
     6. The facts in Saraf Chandra Rabha (supra) will be
required to be noticed to appreciate the relevance of the view
expressed therein to the context of the present case. In Saraf
Chandra Rabha (supra) the nomination paper of the appellant
Aniram Basumatari for election to the Assam Legislative D
Assembly was rejected by the Returning Officer on the ground
that the said person was disqualified under Section 7(b) of the
Representation of the People Act, 1951 (hereinafter for short
"the RP Act"). Under Section 7(b) of the RP Act a person stood
disqualified from being chosen as a Member of the Legislative E
Assembly if he is convicted by a Court in India of any offence
and sentenced to imprisonment for not less than two years .
unless a period of five years or such lesser period as may be
allowed by the Election Commission, has elapsed since his
release. The appellant in Saraf Chandra Rabha (supra) was F
convicted of the offence under Section 4(b) of the Explosive
Substances Act, 1908 and sentenced to three years RI on
10. 7.1953. On the date of filing of the nomination paper by the
appellant, i.e. on 19th January, 1957, admittedly, the period of
five years since his release had not elapsed. However, the G
sentence of three years imposed on the appellant on 10.7.1953
was remitted by the Government of Assam on 8.11.1954 under
Section 401 of the Code of Criminal Procedure, 1898 (Section
432 of the present Code of Criminal Procedure) and the
2.   AIR 1961 Supreme Court 334.                                  H
    278        SUPREME COURT REPORTS               (2013] 2 S.C.R.

A appellant was released on 14.11.1954. In the above facts, it
  was contended before the Election Tribunal that in view of the
  remission granted, the sentence imposed on the appellant was
  reduced to a period of less than 2 years and therefore the
  appellant had not incurred the disqualification under Section
B 7(b) of the RP Act. The issue raised was answered in favour
  of the appellant by the Election Tribunal, which view was,
  however, reversed in the appeal filed before the High Court by
  the returned candidate. In doing so the High Court was of the
  opinion, "that a remission of sentence did not have the same
c effect as a free pardon and did not have the effect of reducing
  the sentence passed on the appellant from three years to less
  than two years, even though the appellant might have remained
  in jail for less than two years because of the order of
  remission."
D         7. The matter having reached this Court on the basis of a
    certificate granted by the High Court, the question that had
    arisen was formulated in the following terms:-

          "The main question therefore that falls for consideration
E         is whether the order of remission has the effect of reducing
          the sentence in the same way in which an order of an
          appellate or revisional criminal court has the effect of
          reducing the sentence passed by the trial court to the
          extent indicated in the order of the appellate or revisional
F         court."

       8. On a detailed examination and scrutiny of the various
  dimensions of the question that had arisen, this Court upheld
  the view taken by the High Court and answered the question
  formulated by it by holding that ".... the effect of an order of
G remission is to wipe out that part of the sentence of
  imprisonment which has not been served out and thus in
  practice to reduce the sentence to the period already
  undergone, in law the order of remission merely means that the
  rest of the sentence need not be undergone, leaving the order
H
      BUDH SINGH v. STATE OF HARYANA AND ANR.                 279
                 [RANJAN GOGOi, J .]
· of conviction by the court and the sentence passed by it           A
  untouched."
      . 9. In Maru Ram vs. Union of India and Others3 (para 27),
 this Court had observed that Article 20(1) of the constitution
 engrafts the rule that there can be no ex post facto infliction of
                                                                       8
 a penalty heavier than what had prevailed at the time of
 commission of the offence. Section 32A ex facie has nothing
 to do with the punishment or penalty imposed under the Act.
 In fact, no change or alteration in the severity of the penalty under
 the NDPS Act has been brought about by the introduction of
 Section 32A with effect from 29.05.1989. What Section 32A C
 has done is to obliterate the benefit of remission(s) that a
 convict under the NDPS Act would have normally earned. But,
 if the correct legal position is that the remission(s) do not in any
 way touch or affect the penalty/sentence imposed by a Cou:-1,
 we do not see how the exclusion of benefit of remission can D
 be understood to have the effect of enlarging the period of
 incarceration of an accused convicted under the NDPS Act or
 as to how the said provision, i.e., Section 32A, can have the
 effect of making a convict undergo a longer period of sentence
 than what the Act had contemplated at the time of commission E
  of the offence.

      10. For the aforesaid reasons, we find no substance in the
 challenge to the provisions of Section 32A of the NDPS Act.
 This writ petition, therefore, has to fail and is accordingly        F
 dismissed.
 R.P.                                    Writ Petition dismissed.




 3.    (1981) 1 sec 101.