JUDGMENT

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order dated 22.2.2007 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Misc. No. 63845-M of 2006, wherein the High Court has upheld the validity of the letter dated 28.6.2006 issued by the Deputy Inspector General of Prisons, Haryana, giving effect to the provisions of Section 32-A of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `NDPS Act’).

2. The High Court referring to various provisions of the Punjab Jail Manual held that the appellants are not entitled to any remission in view of the provisions of Section 32-A of NDPS Act. Section 32-A of the NDPS is reproduced herein as under:

“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.”

3. The High Court has held that legal provisions concerning remission are governed by the statutory provisions as laid down in Punjab Jail Manual rather than under Article 161 of the Constitution of India. The provisions of Section 32-A of NDPS Act would have overriding effect, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.’), or any other law for the time being in force. Thus, the appellants were not entitled for the relief sought by them.

4. This Court while examining the issue, has considered the three Judge Bench judgment of this Court in Dadu @Tulsidas v. State of Maharashtra, (2000) 8 SCC 437, wherein the validity of the said provisions was challenged. Relevant part of the judgment reads as under:

“1…….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.……. 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.

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15. 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 the 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 convicted of any offence against any law relating to a matter to which the executive power of the Union and State exists…..The distinction of the convicts under the Act and under other statutes, insofar as it relates to the exercise of 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