The aspect of remission falls under the criminal law system and is covered by the concurrent list, and the Parliament has the legislative competence to enact provisions related to remission.

VIPIN SANGHI, J.

1. The petitioner has preferred the present writ petition to seek a declaration that Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is ultravires to the extent it prevents the convicts under the said Act from getting remission under the Delhi Jail Manual.

2. The petitioner is a convict under the NDPS Act. He stands convicted under Section 21 and 29 of the NDPS Act and sentenced to 12 year rigorous imprisonment with fine, vide judgment and order on sentence dated 06.01.2011 passed by the learned ASJ, Special Judge NDPS, South & South East Saket Courts in Sessions Case No.43A of 2008 titled “Directorate of Revenue Intelligence v. Samuel John and Anr”. The petitioner states that he accepted the judgment and order on sentence and did not prefer any appeal.

3. Section 32A of the NDPS Act bars the suspension, remission or commutation of sentence awarded under the NDPS Act, subject to provisions in Section 33. However, the said provision is not applicable to cases covered by Section 27 of the said Act. The same reads as follows:

“32A. No suspension, remission or commutation in any sentence awarded under this Act.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) 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.”

4. The submission of the petitioner is that remission of sentence could be provided under three different provisions. Firstly, it could be provided under Articles 72 and 161 of the Constitution of India, which relate to the power of remission vested in the President of India and the Governor of a State respectively. Secondly, the power of remission is also vested by virtue of Section 432 of the Code of Criminal Procedure (Code/Cr PC) in the appropriate government.

5. The petitioner claims that the third provision for remission is contained under the Delhi Prisons Act, 2000 (DP Act), which is good conduct remission. In this respect, learned counsel for the petitioner places reliance on Section 71 of the DP Act, 2000 which empowers the government to make rules generally to carry out the provisions of the said Act. Sub-section (2) thereof particularises, without prejudice to the generality, the aspects on which the rules may be made. These include:

“(v) for the award of marks and the shortening of sentence;

x x x x x x x x x

(xix) for the preparation and maintenance of history tickets;

x x x x x x x x x

(xxx) for grant of parole, furlough and leave to prisoners;”

6. The petitioner is aggrieved by and challenges the bar created by Section 32A of the NDPS Act to grant of even good conduct remission under the Delhi Prisons Rules, 1998 (DP Rules), which have been framed under the DP Act.

7. The submission of learned counsel for the petitioner is that the subject of Prisons falls in Entry 4 of the State List (List II of 7th Schedule to the Constitution of India). The said entry reads as under:

“4. Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other States for the use of prisons and other institutions.”

8. Learned counsel submits that the DP Act has been framed by resort to Entry 4 of List II of 7th Schedule to the Constitution of India. He submits that in exercise of the rule making power contained in section 71 of the DP Act, the Delhi Prisons (Admission, Classification, Separation, Remission, Reward and Release of Prisoners) Rules, 1988 (DP Rules) have been framed. Learned counsel submits that Rule 67 of the DP Rules provides for four kinds of remissions i.e.

“(a) Ordinary remission;

(b) Annual Good Conduct Remission;

(c) Special remission; and

(d) State remission.”

9. Under Rule 68, the Superintendent is the authority designated to grant ordinary remission under the said Rules. Under Rule 69, the conditions have been laid dow