IMPORTANT POINTS
Power to pardon under Articles 72 and 161 and powers of remission u/s 433 Cr PC are quite different.
A convict under NDPS Act cannot approach the Supreme Court for the purpose of remission alone as matter of right under Article 32 of the Constitution.
Article 32 can be invoked on violation of fundamental right as also in Public Interest Litigation.
Mandamus cannot be issued for remission of sentence imposed under NDPS Act.

JUDGMENT

Dipak Misra, J.

In this writ petition preferred under Article 32 of Constitution of India, the petitioners, who have been convicted for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for more than 10 years and to pay a fine of Rs.1 lakh and in default of payment of fine, to suffer further rigorous imprisonment for six months, have prayed for issue of writ of mandamus to the respondent nos. 1 to 3 commanding them to grant remission to them as per the provisions contained in Chapter XIX of the New Punjab Jail Manual, 1996 (for short, ‘the Manual’).

2. This writ petition was listed along with SLP(Crl) No. 4079 of 2012, wherein at the time of issue of notice, the following issue was noted:-

“The point which has been raised today on behalf of the petitioner is whether the remission granted by the Governor under Article 161 of the Constitution has an overriding effect over the provisions of Section 32A of the NDPS Act. The matter needs consideration having regard to the views expressed by this Court in the case of Meru Ram”.

The special leave petition stood abated as the sole petitioner therein breathed his last during the pendency of the petition.

3. It is the case of the petitioners that Chapter XIX of the Manual lays down remission and award to the convicts depending upon good conduct and performance of duties allotted to them while they are undergoing sentence, but the benefit under the Chapter XIX of the Manual is not made available to the convicts under the NDPS Act on the ground that Section 32-A of the NDPS Act bars entitlement to such remission. It is asserted in the writ petition that the constitutional validity of Section 32-A of the NDPS Act has been upheld in Dadu @ Tulsidas v. State of Maharashtra, (2000) 8 SCC 437. It is contended by the learned counsel for the petitioners that in Maru Ram v. Union of India and others, (1981) 1 SCC 107 the constitutional validity of Section 433-A of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) was under challenge and the larger Bench of this Court has clearly held that it does not curtail the power of the executive under Articles 72 and 161 of the Constitution. Relying on the said decision, it is submitted that this Court can remit the sentence and the said power cannot be curtailed by any legislation. According to the learned counsel for the petitioners, a conjoint reading of Dadu’s case and Maru Ram’s case, the legal position is that remission schemes are effective guidelines for passing orders under Article 161 of the Constitution and, therefore, they have the force of law and, in any case, the principle in Dadu’s case clearly postulates that Section 32-A of the NDPS Act does not come in the way of executive for exercising the constitutional power under Article 72 or 161 of the Constitution. On the aforesaid basis, it has been contended that the denial of benefit sought for by the petitioner is absolutely arbitrary and in total misunderstanding of the ratio laid down in Dadu’s case.

4. Learned counsel for the petitioners would further submit that Section 32-A of the NDPS Act cannot control the remission schemes which are effective guidelines under Article 161 of the Constitution and the statutory provision, by no stretch of imagination, create any fetter in exercise of the constitutional power. In the averments, a comparison has been made on the conviction and sentence under the NDPS Act and Section 302 of the IPC.

5. Learned counsel for the State has opposed the prayer of the petitioners on the ground that Section 32-A of the NDPS Act curtails the statutory power of the concerned Government and accordingly the same has been stipulated in the Manual and hence, no fault can be found with action taken by the State Government. Learned counsel for the State has further contended that once Section 32-A of the NDPS Act has been held to be constitution