By TIOL News Service

NEW DELHI, JULY 01, 2016: THE petitioners have been convicted under the NDPS Act and various offences and sentenced to suffer rigorous imprisonment for more than 10 years and to pay a fine of Rs.1 lakh. The singular issue is whether denial of remission is justified.

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 . It is contended by the learned counsel for the petitioners that in Maru Ram v. Union of India and others ', the constitutional validity of Section 433-A of Code of Criminal Procedure, 1973 ('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 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.

The 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.

The 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. The counsel for the State has further contended that once Section 32-A of the NDPS Act has been held to be constitutionally valid, the effort to compare the conviction and sentence under Section 302 IPC with that under Section 32-A of the NDPS Act is an exercise in futility.

The petitioners have invoked the power of the Supreme Court to grant the benefit of remission in exercise of power under Article 32 of the Constitution of India.

The SC observed,

"Speaking plainly, the prayer is totally misconceived. It is urged in a different manner before us that the power exercised by this Court under Article 32 and Article 142 of the Constitution cannot be statutorily controlled. Though the argument strikes a note of innovation, yet the innovation in the case at hand cannot be allowed to last long, for it invites immediate repulsion. Section 32-A of the NDPS Act, as far as it took away the power of the Court to suspend the sentence awarded to the convict under the Act has been declared unconstitutional in Dadu 's case. A convict can pray for suspension of sentence when the appeal is pending for adjudication. The aforesaid authority has upheld the constitutional validity of the Section insofar as it takes away the right of the executive to suspend, remit and commute the sentence. Negation of the power of the courts to suspend the sentence which has been declared as unconstitutional, as has been held in Dadu 's case, does not confer a right on the convict to ask for suspension of the sentence as a matter of right in all cases nor does it absolve the courts of their legal obligation to exercise the power of suspension within the parameters prescribed under Section 37 of the NDPS Act."

The issue here is whether a writ of mandamus can be issued to authorities to grant remission to the petitioners.

The present factual matrix does not remotely suggest that there has been violation of any fundamental right. There is no violation of any law which affects the fundamental rights of the petitioners. The argument that when a pardon or remission can be given under Article 72 or 161 of the Constitution by the constitutional authority, this Court can exercise the similar power under Article 32 of the Constitution of India is absolutely based on an erroneous premise. Article 32, as has been interpreted and stated by the Constitution Bench and well settled in law, can be only invoked when there is violation of any fundamental right or where the Court takes up certain grievance which falls in the realm of public interest litigation.Therefore, we repel the submission on the said score.

In view of the aforesaid, the argument to invoke Article 142 in conjunction with Article 32 of the Constitution is absolutely fallacious and we unhesitatingly repel the same.

Consequently, no merit in this writ petition and accordingly, the same stands dismissed.

(See 2016-TIOL-93-SC-NDPS)