2000 (10) TMI 946 - SC - Customs

Constitutional validity of Section 32A of the Narcotic Drugs and Psychotropic Substances Act 1985 Held that - Despite holding that Section 32A is unconstitutional to the extent it affects the functioning of the criminal courts in the country we are not declaring the whole of the section as unconstitutional in view of our finding that the Section in so far as it takes away the right of the Executive to suspend remit and commute the sentence is valid and intra vires of the Constitution. The Declaration of Section 32A to be unconstitutional in so far as it affects the functioning of the courts in the country would not render the whole of the section invalid the restriction imposed by the offending section being distinct and severable. Holding Section 32A as void in so far as it takes away the right of the courts to suspend the sentence awarded to a convict under the Act would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. Under the circumstances the writ petitions are disposed of by holding that (1) Section 32A does not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the court to suspend the sentence of a convict under the Act; (3) 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. The petitioner in Writ Petition No.l69/99 shall be at liberty to apply for parole and his prayer be considered and disposed of in accordance with the statutory provisions if any Jail Manual or Government Instructions without implying Section 32A of the Act as a bar for consideration of the prayer. Similarly petitioner in Writ Petition No.243/99 is at liberty to move the High Court for suspension of sentence awarded to him under the Act. As and when any such application is filed the same shall be disposed of in accordance with law and keeping in view the limitations prescribed under Section 37 of the Act and the law laid down by this Court.

Issues Involved:
1. Constitutional validity of Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Allegations of Section 32A being arbitrary, discriminatory, and violative of Articles 14 and 21 of the Constitution.
3. Impact on judicial functions and the right to appeal.
4. Executive power to grant parole under Section 32A.
5. Distinction between parole and suspension of sentence.

Detailed Analysis:

1. Constitutional Validity of Section 32A of the NDPS Act:
The Supreme Court examined the constitutional validity of Section 32A, which prohibits the suspension, remission, or commutation of sentences under the NDPS Act. The Section was challenged on the grounds of being arbitrary and discriminatory, violating Articles 14 and 21 of the Constitution. The Court held that the Section is valid insofar as it restricts the Executive's power under Sections 432 and 433 of the Code of Criminal Procedure (the Code), but unconstitutional to the extent it ousts the judicial power to suspend sentences.

2. Allegations of Section 32A Being Arbitrary, Discriminatory, and Violative of Articles 14 and 21:
The petitioners argued that Section 32A creates an unreasonable distinction between prisoners convicted under the NDPS Act and those convicted under other statutes, thereby violating the equality guaranteed under Article 14 and the right to life under Article 21. The Court found that the distinction is justified due to the severe impact of drug trafficking on society and the economy, and thus, the Section is not arbitrary or discriminatory in this context.

3. Impact on Judicial Functions and the Right to Appeal:
The Court emphasized that awarding sentences and considering their legality or adequacy in appeals is a judicial function. The right of appeal is a substantive right, and the inability to suspend sentences during appeals would render this right ineffective. The Court held that Section 32A, by completely removing the power of appellate courts to suspend sentences, unjustly interferes with judicial functions and violates Article 21. Therefore, this part of Section 32A was declared unconstitutional.

4. Executive Power to Grant Parole Under Section 32A:
The Court clarified that parole is an executive function and does not amount to suspension, remission, or commutation of sentences. Parole allows temporary release for specific purposes without interrupting the sentence. The Court held that Section 32A does not bar the granting of parole, and convicts under the NDPS Act are entitled to parole subject to statutory provisions, jail manuals, or government instructions.

5. Distinction Between Parole and Suspension of Sentence:
The Court distinguished between parole and suspension of sentence, stating that parole is a temporary release for specific purposes and does not suspend the sentence, whereas suspension of sentence is a judicial function pending the appeal. The Court reiterated that parole is an executive action, and Section 32A does not affect the power to grant parole.

Conclusion:
The Supreme Court held that Section 32A of the NDPS Act is unconstitutional to the extent it prevents courts from suspending sentences of convicts under the Act. However, the Section is valid in restricting the Executive's power to suspend, remit, or commute sentences. The Court directed that applications for parole should be considered without applying Section 32A as a bar, and the appellate courts can suspend sentences subject to the conditions of Section 37 of the Act.

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