Criminal Writ Petition No.2084 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

Criminal Writ Petition No.2084 of 2010

Date of Decision: 31.03.2011.

Kuldip Singh

..Petitioner

Versus

State of Punjab and another

..Respondents

CORAM:

HON'BLE MR. JUSTICE NAWAB SINGH

Present:

Mr. V.K. Jindal, Advocate,

for the petitioner.

Mr. Kirat Singh Sidhu, D.A.G. Punjab,

for the respondents – State.

NAWAB SINGH.J (ORAL)

By judgment dated February 13^th, 1998 passed by

Judge, Special Court, Hoshiarpur, Kuldip Singh-petitioner was

convicted under Section 15 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short 'N.D.P.S. Act') and was sentenced to

undergo rigorous imprisonment for a period of ten years and to pay

fine of Rs.1,00,000/- with default stipulation, in case bearing First

Information Report No.29 dated May 27^th, 1994, Police Station

Balachaur, District Nawan Shahar.

2.

In reply filed by the State, it has been stated that

the petitioner has already undergone actual sentence of 9 years, 6

months and 20 days as on January 27^th, 2011.

3.

By filing this petition, petitioner has pleaded that he

be granted benefit of remissions which have been granted by the

State under Article 161 of Constitution of India as well as provisions

of Punjab Jail Manual, during the period, he remained confined in jail

after conviction, that is, from February 13^th, 1998 to March 2^nd, 2001

and February 17^th, 2006 to January 27^th, 2011.

4.

Learned counsel for the petitioner has urged that

Criminal Writ Petition No.2084 of 2010

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State Government is not considering the case of the petitioner for

grant of remissions, in view of Section 32A of the N.D.P.S. Act,

whereby, no sentence awarded under N.D.P.S. Act shall be

suspended, remitted or commuted.

5.

In Dadu @ Tulsidas vs. State of Maharashtra,

2000(4) RCR (Criminal) 275, Hon'ble Supreme Court has given the

interpretation to the provisions of Section 32-A of N.D.P.S. Act and

its constitutional validity in respect of Sections 432 and 433 of the

Code of Criminal Procedure and upheld the distinction between

convicts under the N.D.P.S. Act and those under other statutes in the

following terms: -

“There is, therefore, no voice 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.”

6.

In Ekka Ram vs. State of Punjab (Criminal Writ

Petition No.839 of 2004 decided on September 14^th, 2005), it was

observed as under by this Court: -

“On due consideration of rival submissions, it

appears that Hon'ble the Apex Court in a three

judge Bench judgment JT 2000(Suppl.1) SC 449

(Dadu alias Tulsidas etc. versus State of

Maharashtra etc.) in para No.15 has discussed the

powers of the President and Governor of the State

under Articles 72 and 161 of the Constitution,

respectively. From the ratio of the discussion, it

appears that the embargo under Section 32-A of

the Act is applicable only to executive decisions

under Section 432 Cr.P.C. and it would not apply

for the purpose of imposing any restriction on the

powers of the President and Governors. As the

impugned circular (Annexure P-2) has been issued

also in exercise of the powers of the Governor,

Punjab under Article 161 of the Constitution, the

Criminal Writ Petition No.2084 of 2010

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aforesaid submissions of learned counsel for the

petitioner appear to carry force and deserve

consideration.”

7.

Above being the legal and factual position, this

Court directs the State Government to consider the case of the

petitioner with regard to the remissions granted by the State during

the period, he remained in custody after conviction, that is, from

February 13^th, 1998 to March 2^nd, 2001 and February 17^th, 2006 to

January 27^th, 2011 and in case, he is found to be covered under

special remissions granted by the State unde