9911796707
TMI Blog2016 (7) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... Governor under Article 161 of the Constitution has an overriding effect over the provisions of Section 32A of the NDPS Act. The matter needs consideration having regard to the views expressed by this Court in the case of Meru Ram". The special leave petition stood abated as the sole petitioner therein breathed his last during the pendency of the petition. 3. 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 (2000) 8 SCC 437. It is contended by the learned counsel for the petitioners that in Maru Ram v. Union of India and others (1981) 1 SCC 107, the constitutional validity of Section 433-A of Code of Criminal Procedure, 1973 (for short, 'CrPC') was under challenge and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Constitution is different than the remission granted under Section 433-A of CrPC. 7. It is not in dispute that 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 under the Manual is justified. Chapter XIX of the Manual deals with remission and reward. Paragraphs 563 to 588 deal with remission system. Paragraphs 589 and 590 deal with reward. Paragraph 563 states that remission can be granted to prisoners by the State Government/Inspector-General/Superintendent Jails which is subject to withdrawal/forfeiture/revocation. It is not a right and the State Government reserves the right to debar/withdraw any prisoner or category of prisoners from the concession of remission. Paragraph 565 stipulates that remission is of three types, namely, ordinary remission, special remission and the State Government remission. Paragraph 567 postulates the eligibility criteria for prisoners who will be eligible for earning the State Government remission. Paragraph 571 provides what would constitute non-eligibility to get ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure prescribed therein." 10. After so stating, the Court referred to Section 433 CrPC, which empowers the Appropriate Government to commute the sentence. Thereafter, deliberation centered on Section 389 of CrPC. The Bench referred to the decision in Maktool Singh v. State of Punjab (1999) 3 SCC 321 and in that context opined:- "... The distinction of the convicts under the Act and under other statutes, insofar as it relates to the exercise of executive powers under Sections 432 and 433 of the Code is concerned, cannot be termed to be either arbitrary or discriminatory being violative of Article 14 of the Constitution. Such deprivation of the executive can also not be stretched to hold that the right to life of a person has been taken away except, according to the procedure established by law. It is not contended on behalf of the petitioners that the procedure prescribed under the Act for holding the trial is not reasonable, fair and just. The offending section, insofar as it relates to the executive in the matter of suspension, remission and commutation of sentence, after conviction, does not, in any way, encroach upon the personal liberty of the convict tried fairly and sente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of sentence under the CrPC. Section 432 deals with power to suspend or remit sentences. Section 433 deals with power to commute sentences. Section 433-A lays the postulate for restrictions on powers of remission or commutation in certain cases. The said provision reads as follows:- "433-A. Restriction on powers of remission or commutation in certain cases. - Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where the sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment." 15. The constitutional validity of Section 433-A was challenged in Maru Ram (supra) and the said provision has been held to be intra vires. While dealing with the constitutional validity, Krishna Iyer, J., speaking for the majority, distinguished the power conferred under the constitutional authorities under Articles 72 and 161 and the power conferred under the Code. In the said case, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar power, and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like. xxxxx xxxxx (8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. (9) Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise. 18. The aforesaid decision makes it clear that the exercise of powers under Article 72 or 161 is quite different t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourselves to the implication of statutory power of remission, etc., provided under the Criminal Procedure Code entrusted with the Executive of the State as against the well thought out judicial decisions in the imposition of sentence for the related grievous crimes for which either capital punishment or a life sentence is provided for. When the said distinction can be clearly ascertained, it must be held that there is a vast difference between an executive action for the grant of commutation, remission etc., as against a judicial decision. Time and again, it is held that judicial action forms part of the basic structure of the Constitution. We can state with certain amount of confidence and certainty, that there will be no match for a judicial decision by any of the authority other than Constitutional Authority, though in the form of an executive action, having regard to the higher pedestal in which such Constitutional Heads are placed whose action will remain unquestionable except for lack of certain basic features which has also been noted in the various decisions of this Court including Maru Ram (supra)". 20. What is being urged is as constitutional powers under Articles 72 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental right for the enforcement of which alone Article 32 of the Constitution is attracted. It is not possible to accept that an allegation of breach of law or a constitutional provision is an action in breach of fundamental right. The writ petition deserves dismissal only on this ground". 22. 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, as has been held in Bandhua Mukti Morcha v. Union of India and others (1984) 3 SCC 161 and Samaj Parivartana Samudaya and others v. State of Karnataka and others (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
