VERY IMPORTANT POINTS
1. Section 32A of the Narcotic Drugs and Psychotropic Substances Act, in so far as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act is unconstitutional.
2. Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 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.
3. Section 32A of the Narcotic Drugs and Psychotropic Substances Act does not in any way affect the powers of the authorities to grant parole.

Headnote:(i) Parole-Suspension-Remission or commutation of sentence-Distinction between-Convict under Narcotic Drugs and Psychotropic Substances Act, whether entitled to parole?-Notwithstanding provisions of Section 32A of the NDPSA a convict is entitled to parole, subject, however, to conditions governing grant of it under statute, if any, or jail Manual or Government Instructions.
       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 that 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. (Paras 6 & 7)
       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. (Para 9)
       (ii) Narcotic Drugs and Psychotropic Substances Act, 1985-Section 32A-Constitutional validity-Section 32A does not in any way affect power of authorities to grant parole-Section 32 in so far as it ousts jurisdiction of Court to suspend sentence awarded to a convict is unconstitutional-Section 32 is valid and intra vires Constitution in so far as it takes away right of executive to suspend, remit and commute sentence-Sentence awarded under NDPSA can be suspended by appellate Court only and strictly subject to conditions spelt out in Section 37.
       The distinction of the convicts under the NDPS 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 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. (Para 13)
       Awarding sentence upon conviction is a judicial function to be discharged by the courts of law established in the country. It is always a matter of judicial discretion, however, subject to any mandatory minimum sentence prescribed by the law. The award of sentence by a criminal court wherever made subject to the right of appeal cannot be interfered or intermeddled with in a way which amounts to not only interference but actually taking away the power of judicial review. Awarding the sentence and consideration of its legality or adequacy in appeal is essentially a judicial function embracing within its ambit the power to suspend the sentence under the peculiar circumstances of each case, pending the disposal of the appeal. Not providing atleast one right of appeal, would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when conferred, a substantive right. Providing a right of appeal but totally disarming the court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Article 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits atleast in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the court cannot be denuded by Executive or judicial process. (Paras 14 & 15)
       A perusal of United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 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 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. (Para 20)
       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. 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. (Paras 22 & 23)
       Holding Section 32A as void in so far as it takes away the right of the courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. (Para 24)
       Held consequently, (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. (Para 26)

Judgement Key Points

Obiter Dicta

The NDPS Act's stringent provisions reflect a legislative policy to impose minimum mandatory sentences for drug-related offences, prioritizing deterrence over leniency, but such rigidity must yield to constitutional mandates where fundamental rights are implicated (!) (!) [1000050300011][1000050300012].

While Section 32A curtails suspension powers, courts retain inherent authority under Article 142 to do complete justice in exceptional circumstances, such as prolonged trial delays or humanitarian grounds, without undermining the Act's objectives (!) [1000050300014][1000050300021].

Parole decisions for NDPS convicts should be guided by consistent criteria across states, balancing public safety with rehabilitation, and not treated as a substitute for judicial suspension (!) (!) [1000050300005][1000050300006][1000050300008].

Jail manuals and executive instructions on parole must align with Article 21's right to life and liberty, ensuring procedural fairness in applications [1000050300007] (!) (!) .

Section 37 NDPS Act's twin conditions for bail impose a higher threshold than general bail provisions under CrPC, underscoring the gravity of drug trafficking as a societal menace akin to organized crime (!) (!) (!) (!) (!) [1000050300023].

Appellate courts, in exercising discretion for suspension post-conviction, must record reasoned findings on innocence and non-recidivism risks, preventing mechanical grant or denial (!) (!) .

The distinction between judicial suspension (now restored) and executive remission highlights a separation of powers: courts protect appellate rights, while executive clemency serves policy goals under constitutional oversight [1000050300012][1000050300013][1000050300048][1000050300022].

Delays in NDPS appeals, often exceeding years, amplify the need for expeditious disposal mechanisms to prevent Section 32A-like ousters from becoming de facto life sentences without trial [1000050300014][1000050300015][1000050300021].

JUDGMENT

Sethi, J.-The Constitutional validity of Selection 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 is that behalf.

2. The petitioner in W.P. No. 169/99 was arrested and upon conviction under Section 21 of the Act sentenced to undergo imprisonment for 10 years. He claims to have already undergone sentence for more than 7 years. He could not claim parole presumably under the impression that Section 32A of the act was a bar for the State to grant it. Though the petitioner has referred to Maharashtra Jail Manual, particularly Chapter XXXVIII providing various kinds of remissions and authorising the grant of parole yet nothing is on the record to show as to whether he in fact applied for parole or not.

3. 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 Punjab1.

4. 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 o

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2000 Supreme(SC) 1640

Obiter Dicta

Cases Referred (9)