By TIOL News Service

NEW DELHI, MAY 08, 2013: SECTION 32A of the NDPS Act reads -

“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.”

Recently, in a criminal appeal, the appellant has challenged the decision of High Court that the provisions of Section 32-A of NDPS Act would have overriding effect, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force. Thus, the appellants were not entitled for the relief sought by them.

The appeal thus brings into focus the question as to whether the Section is violative of Articles 14 and 21 of the Constitution of India as it creates unreasonable distinction between the prisoners convicted under the NDPS Act and the prisoners convicted for the offences punishable under various other statutes.

Also, 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.

While examining the above two issues, the Supreme Court observed:

+ In case of Dadu @ Tulsidas v. State of Maharashtra, (2000) 8 SCC 437 , the validity of the aforementioned provisions, (Sec 32A) so far as the competence of the court is concerned, was partly struck down. As to the question of imposing complete embargo on remission and commutation in the context of Articles 72 and 161 of the Constitution of India, the issue was not conclusively decided by the court. More so, in paragraph 15, the reference has been made that such exclusion cannot be held as unconstitutional on account of it not being absolute, in view of the constitutional powers conferred upon the executives. Articles 72 and 161 of the Constitution empower the President of India 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. It was held finally that :

+ Section 32-A does not in any way affect the powers of the authorities to grant parole.

+ It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act.

+ 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.

+ Thus, it is evident from the aforesaid judgment that the validity of the aforementioned provisions, so far as the competence of the court is concerned, was partly struck down. As to the question of imposing complete embargo on remission and commutation in the context of Articles 72 and 161 of the Constitution of India, the issue was not conclusively decided by the court. More so, in paragraph 15, the reference has been made that such exclusion cannot be held as unconstitutional on account of it not being absolute, in view of the constitutional powers conferred upon the executives. Articles 72 and 161 of the Constitution empower the President of India 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.

+ Articles 72 and 161 of the Constitution provide for residuary sovereign power, thus, there could be nothing to debar the concerned authorities to exercise such power even after rejection of one clemency petition and even in the changed circumstances. (Vide: Krishta Goud and J. Bhoomaiah v. State of Andhra Pradesh & Ors., (1976) 1 SCC 157).

+ A two Judge Bench of this Court heard the matter on 8.1.1993 and prima facie had been of the view that on a plain reading of Section 32-A of NDPS Act, it appeared to be quite draconian and to understand the matter further, the Court requested Shri Huzefa Ahmadi, learned senior counsel and Shri Paras Kuhad, learned Additional Solicitor General, to assist the Court as Amicus Curiae, as to whether Section 32-A of NDPS Act, would apply to the clemency powers of the President of India and the Governor of the State and what could be its applicability with respect to the statutory rules which have been framed by the State, in exercise of its executive powers under the Constitution. In view thereof, both Shri Huzefa Ahmadi , learned senior counsel and Shri Paras Kuhad, learned ASG made their submissions pointing out that the powers of clemency under Articles 72 and 161 of the Constitution, cannot be controlled by any statute and, therefore, it requires a clarification that the provisions of Section 32-A of NDPS Act cannot be a fetter to the said powers of clemency by any means whatsoever.

In view of the above, the Bench held that the matter requires to be considered by a larger bench, either by a three Judges Bench first or by a five Judges Bench directly.

(See 2013-TIOL-29-SC-NDPS)