Holding

Section 32A is unconstitutional to the extent it removes the courts' power to suspend sentences of NDPS convicts, but remains valid insofar as it curtails the executive's power to suspend, remit or commute such sentences.

Summary

The Supreme Court examined the constitutional validity of Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985, which barred courts and the executive from suspending, remitting or commuting sentences of convicts under the Act. The petitioners argued that the provision violated Articles 14 and 21 by creating an arbitrary distinction and denying the appellate courts the power to grant interim relief. The Court held that removing the judiciary's jurisdiction to suspend sentences was unconstitutional, as it undermined the right of appeal and due process, but upheld the provision’s restriction on the executive’s power as intra vires. It clarified that parole is an executive function and not a suspension of sentence, and therefore not barred by Section 32A. Consequently, the petitions were partly allowed: the courts may suspend sentences under Section 37 of the Act, and parole may be granted without impediment from Section 32A.

Issues considered

Whether Section 32A of the NDPS Act, which prohibits suspension, remission or commutation of sentences, is violative of Articles 14 and 21 of the Constitution.
Whether the legislature can deprive appellate courts of the power to suspend sentences pending appeal.
Whether the restriction on the executive’s power to suspend, remit or commute sentences under Sections 432 and 433 of the CrPC is constitutionally valid.
Whether parole granted to a convict under the NDPS Act amounts to suspension of sentence within the meaning of Section 32A.

Legislation cited

Code of Criminal Procedure, 1973s. 389, s. 432, s. 433
Constitution of Indias. 14, s. 161, s. 21, s. 22, s. 226, s. 32, s. 72
Narcotic Drugs and Psychotropic Substances Act, 1985s. 32A, s. 33, s. 37

Subjects

NDPS ActSection 32Asuspension of sentenceparoleconstitutional validityArticles 14 and 21judicial reviewexecutive powersCriminal Procedure Codeappellate jurisdiction

Judgment

- DADU @ TULSIDAS
v.
STA TE OF MAHARASHTRA
A

... OCTOBER 12, 2000

[K.T. THOMAS, R.P. SETHI AND S.N. VARIAVA, JJ.] B

Narcotic Drugs and Psychotropic Substances Act, 1985

S.32A-Constitutional validity of-NDPS Act-Conviction under-
Sentence-Suspension of-Provision for ouster of jurisdiction of court to c
suspend sentence-Held, unconstitutional-However, the provision taking
away the power of Execut;ve to suspend, remit or commute sentenpe, held,
valid-Power of court to suspend sentence must be exercised within
parameters prescribed under S.37-Convicts not entitled to suspension of
sentence as a matter of right-Criminal Procedure Code, 1973-Ss. 389, 432 D
and 433-Constitution of India, 1950-Articles 14 and 21.

Parole-Grant-Effect-Held, does not amount to suspension, remission
or commutation of sentence-Thus, authorities entitled to grant parole to a
person convicted under the Act.

Constitution of India, 1950-Articles 226 and 32-Judicial Review-
E
Exercise of-Legislative restrictions-Imposition-Permissibility of-Held,
Judicial Review being heart and soul of the Constitutional scheme, cannot
be encroached upon by legislature.

Words & Phrases
F
"Parole"-Meaning of

In these writ petitions, the Constitutional validity of Section 32A of the
Narcotic Drugs and Psychotoropic Substances Act, 1985 prohibiting
suspension, remission or commutation of sentence awarded under the Act has
been challenged.
G

On behalf of appellant-convicts it was contended that Section 32A of the
Act creating unreasonable distinction between the prisoners convicted under
the Act and those convicted for offences under various other statutes was
-. arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution.
703
H
-
704 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A Partly allowing the writ petitions, the Court

HELD : 1.1. Section 32A of the Narcotic Drugs and Psychotropic
Substances Act, 1985 taking away the jurisdiction of the courts under Section
389 of the Criminal Procedure Code, 1973 to suspend the sentences awarded
to a convict under the Act is unconstitutional. [721-G]
B
Ram Charan v. Union of India, (1991) 9 LCD 160, approved.

Jshwarsingh M Rajput v. State of Gujarat, (1990) 2 Gujarat Law
Reporter (1365) = (1991) 2 Crimes 160, overruled.

C 1.2. 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
D intermediate 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.
[716-B, C, D]
E
1.3. Not providing atleast one right of appeal, would negate the due
process of law in the matter of dispensation of criminal justice. 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
F for early disposal of the appeal. Thus, the appellate powers of the court cannot
be denuded by Executive or judicial process. [716-E-F)

Bhagwan Rama Shinde Gosai & Ors. v. State of Gujarat, AIR (1999)
SC 1859, relied on.

G Denny v. Mattoom, 2 Allen, 361, referred to.

Thomas M Cooley: "Treatise on the Constitutional Limitations" 8th -~
Edition, referred to.

1.4. Judicial review is the heart and soul of the constitutional scheme.
H The judiciary is constituted as the ultimate interpreter of the Constitution
-
DADU v. STATE OF MAHARASHTRA 705
and is assigned the delicate task of determining the extent and scope of the A
powers conferred on each branch of the Government, ensuring that action of
any branch does not transgress its limits. The judicial review was, 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 the country. [720-D-H; 721-A]
B
S.P. Sampath Kumar v. Union of India, [1987] 1SCC124 and S.S. Bola
& Ors. v. B.D. Sardana & Ors., AIR (1999) SC 3127, relied on.

2. It cannot be held that S.32 of the Act was enacted in discharge of the
international obligations. A perusal of the agreement of the United Nations
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic C
Substances, 1988 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 D
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 parole 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 criminal under the Act E
notwithstanding the constitutional principles and basic concepts of its legal
system. [718-A; 720-A-D]

3.1. Section 32A of the Act in so far as it takes away the right of the
Executive under Sections 432 and 433 of the Code to suspend, remit or
commute the sentence is valid and intra vires of the Constitution. (722-B] F
3.2. The distinction of the convicts under the Act and under other
statutes, in so far as it relates to the exercise of the 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. G
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. 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. There is, therefore, no H
706 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A vice of unconstitutionality in the Section is 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.
1715-E, F, G; 716-AJ

4. A sentence awarded under the Act can be suspended by the appellate
B court only and strictly subject to the conditions spelt out in Section 37 of the
Act. 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 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
C exercise the power of suspension of sentence within the parameters prescribed
under Section 37 of the Act. (724-E; 722-D]

Union of India v. Ram Samujh & Anr., [1999) 3 SCC 429, relied on.

5. Section 32A does not in any way affect the powers of the authorities
D to grant parole. 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. "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
E 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. [7~-:-D; 712-D; 709-B-CJ

Poonam Lata v. ML. Wadhawan, [1987) 3 SCC 347; State of Haryana
F v. Mohinder Singh, [2000) 3 SCC 394 and State of Haryana v. Nauratta Singh
& Ors., (2000) 3 SCC 514, relied on.

Sunil Fulchand Shah v. Union of India & Ors., [2000) 3 SCC 409,
followed.

G Concise Oxford Dictionary- (New Edition) and Black's Law Dictionary-
(6th Edition); Law Lexicon, referred to.

CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 169
of 1999.
-
H (Under Article 32 of the Constitution of India).
DADU v. STATE OF MAHARASHTRA [SETHI, J.] 707

WITH A
Writ Petition (CRl) No. 243of1999.

Harish N. Salve, Solicitor General, Ms. Anu Mohla (SCLSC), Aman
Hingorani, Ms. Priya Hingorani, Ms. Reema Bhandari, Ashok Bhan, Ms. Sunita
Sharµia, D.S. Mehra, S.S. Shinde and S.V. Deshpande for the appearing parties. B
The Judgment of the Court was delivered by

SETHI, 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 C
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 D
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, E
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 F
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
G
under Section 21 of the Act sentenced to undergo imprisonment for l 0 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 H
708 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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 pi;esented in the High
Court was dismissed as not pressed in view of the judgment of this Court in
B Maktoo/ 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 Jaw 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,
"\:,,.,
C 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
D statutory control over narcotic drugs in India was being generally e'xercised
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 Conven~ion of Psychotropic
E 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
F 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
G 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
H 32A, a side issue, projected in Writ Petition No. 169, is required to be dealt
DADU v. STATE OF MAHARASHTRA[SETHI, J.] 709
with. The writ petition appears to be based upon the misconception of the A
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 B
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 C
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. ML. Wadhawan,
[1987] 3 sec 347 held:
D
"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 detenues on parole were literally unknown until this Court and E
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 F
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 G
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 H
710 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A 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,
B 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
c that parole is the release of a very long terms prisoner from a penal
or correctional institution after he has s.erved 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
D Singh, [200013 sec 394.

The Constitution Bench of this Court in Suni/ Fulchand Shah v. Union
ofIndia & 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:
E
"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
F 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
G 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
H produce him to appear at his trial at a specified time and
DADU v. STATE OF MAHARASHTRA[SETHI, J.] 711

place. The sureties may seize their principal at any time and A
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 B
"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 C
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 D
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 E
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:
F
"Parole" ameliorates punishment . by permitting convict to serve
sentence outside of prison walls, but parole does not interrupt
sentence. People exrel Rainone v. Murphy, [135 NE 2d 567, 571, I NY
2d 367, 153 NYS 2d 21, 26].

'Parole does not vacate sentence imposed, but is merely a conditional G
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 H
712 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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
B actually modifies it".

Again in State ofHaryana 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
C closed on a convict. During parole period there is no suspension of
sentence but the sentence is actually continuing to run during that
. p.eriod also."

is
It thus clear that parole did not amount to the suspension, remission
or commutation of sentences which could be withheld under the garb of
D 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. 169of1999 apparently appears
to be misconceived and filed in a hurry without approaching the appropriate
E 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 tbrown to it. Section 32A ·
of the Act reads:
F "32A. No suspension, rem1ss1on 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) ~hall be suspended or
G 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
H sentenced to punishment for an offence, the appropriate Government may, at
DADU v. STATE OF MAHARASHTRA[SETHI, J.] 713
any time, without conditions or upon conditions which the person sentenced A
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 B
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; C
(d) a sentence of simple impriSQnment, 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 D
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 E
o~ 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 F
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
Cri_minal Procedure Code have also been taken away. Section 32A G
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 H
714 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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 Governor of a State to grant pardons, reprieves, respites or remissions
of punishments or to suspend, remit or commute the sentence of any person
B 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,
C 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
D had been escllolated 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
E 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
F 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
G 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
H of specified offences involving specified quantities of certain drugs;
DADU v. STATE OF MAHARASHTRA[SETHI, J.] 715
(iii) to provide that no sentence awarded under the Act, other A
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; B
(vi) to provide immunity from prosecution to the addicts
volunteering for treatment for dedication or detoxification once in
their life time;

(vii) to bring certain substances which are neither narcotic drugs C
nor psychotropic substances but are used in the manufacture or
production of these drugs or substances, tinder 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 D
for a term which may extend to 10 years and fine which may extend
to Rs. l lakh;

(ix) financing illicit traffic and harbouring drug offenders would be
offences liable to punishment at the same level as per drug traffic
offences." E
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 F
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 G
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 talces
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 H
716 SUPREME COURT REPORTS '(2000] SUPP. 3 S.C.R.

A 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
B Government, it was argued that the Legislature is riot 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
C award of sentence by a criminal court wherever made subject to the right of
appeal cannot be interfered or intermediate with in a way which amounts to
not only interference but actually taking away the power of judicial review.
Awarding the sentepce and consideration .of its legality or adequacy in
appeal is essentially a judicial function embracing within its ambit the power
D 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 pro~ess
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
E 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
F 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.

G 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
H by the Legislature or spelt out by the courts by judicial pronouncements. The
DADU v. STATE OF MAHARASHTRA[SETHI, J.] 717
... exercise of judicial discretion on well recognised principles is the safest A
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" B
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 C
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 oflaw the arbitrary will of the legislature,
and thereby controlling the action of the tribunal before which the D
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 E
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, F
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". G
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. H
718 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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
B 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
C 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
D 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;
E
(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
p 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;
G
(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
H any person who is involved in the commission of such an offence or ..... -
DADU v. STATE OF MAHARASHTRA[SETHI, J.] 719

offences to evade the legal consequences of his actions, A
(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; B
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 c
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 D
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;
E
(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
F
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 G
the effectiveness of htw 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
-. I of this article and the circumstances enumerated in paragraph 5 of H
720 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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'sjurisdiction
with respect to the offences relating to narcotic drugs and psychotropic
B 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
C 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
D 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
E 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.
F 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 law_s and the Rule of Law would become a teasing illusion and a promise
G 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
H filing of an appeal, its adjudication and passing of appropriate interim orders .-
DADU v. STATE OF MAHARASHTRA[SETHI, J.] 721
•
is concededly a part of the legal system prevalent in our country. A
In Ram Charan v. Union ofIndia, ( 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 B
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 accuse<{ was termed to be a right of infructuous appeal. However,
Gujarat High Court in Ishwarsingh M Rajput v. State of Gujarat, (1990) 2 C
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 convi~ted under the
Narcotics Act and the prisoners convicted under iul'§, other law, D
including the Indian Penal Code is reasonable one, it1s -w'~th specific
object to curb deterrently habit forming, booming and•Paying (beyond
imagination) nefarious illegal activity in drug trafficki~ Prisoners
convicted under the Narcotics Act are ~lass 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 E
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 F
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."
G
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 H
722 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
•
A correctly interpreted the law relating to the constitutional validity of the
Section and the judgment of Gujarat High Court in lshwarsingh 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 c
B 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
suspepd, 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
C 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
D 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 (l) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973-
E
(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 'bis own bond unless-
F
(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
G 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 {l) are in addition to the limitations under the Code of Criminal
Procedure, 1973 or any other law for the time being in force, ori
H granting of bail.
--
DADU v. STATE OF MAHARASHTRA[SETHI, J.] 723

This Court in Union ofIndia v. Ram Samujh & Anr., [1999] 9 SCC 429 A
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. B
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 C
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)
D
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 E
effects and a deadly impact on the society; they are hazard to the
society; even if they are released temporarily, in all probabilicy, 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 F
to punishment under the NDPS Act, has succinctly observed about
the adverse effect of such activities in Durand Dilier v. ChiefSecretary,
Union Territory ofGoa, [1990] l,SCC 95 as under: (SCC p. 104, para
24) .

"24, With deep concern, we may point out that the organised G
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. H
'.
724 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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."
B
8. T.o 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,

c (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."

D Under the circumstances the writ petitions are disposed of by holding
that (I) Section 32A does not in any way affect the powers of the authorities
to grant parole; (2) It is unconstitut;onal 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
E 37 of the Act as dealt with in this judgment.

The petitioner in Writ Petition No. 169/99 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 tQ,e prayer.
F 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 58all 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.

S.VK Petitions partly allowed.

...