TMI Blog2016 (7) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... erred under Article 32 of Constitution of India, the petitioners, who have been convicted for the offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity, the NDPS Act ) and sentenced to undergo rigorous imprisonment for more than 10 years and to pay a fine of ₹ 1 lakh and in default of payment of fine, to suffer further rigorous imprisonment for six months, have prayed for issue of writ of mandamus to the respondent nos. 1 to 3 commanding them to grant remission to them as per the provisions contained in Chapter XIX of the New Punjab Jail Manual, 1996 (for short, the Manual ). 2. This writ petition was listed along with SLP(Crl) No. 4079 of 2012, wherein at the time of issue of notice, the following issue was noted:- The point which has been raised today on behalf of the petitioner is whether the remission granted by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Learned 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. 6. We have heard Mr. Ranjit Kumar, learned Solicitor General who has contended that the controversy is absolutely covered by the decision in Dadu (supra) and the petitioners cannot claim the benefit of the Jail Manual which is a guidance for exercise of constitutional powers by the Governor. It is his further contention that the exercise of power under Articles 72 and 161 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure, 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. 9. In Dadu s case, the three-Judge Bench scanning the provisions have laid down that:- 13. A perusal of the section would indicate that it deals with three different matters, namely, suspension, remission and commutation of the sentences. Prohibition contained in the section is referable to Sections 389, 432 and 433 of the Code. Section 432 of the Code provides that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced in the manner and according to the procedure 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nconstitutional, insofar 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. 13. The eventual conclusions in the said case are:- 29. Under the circumstances the writ petitions are disposed of by holding that: (1) Section 32-A 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. 14. Having appreciated the analysis made in the aforesaid verdict, we may advert to the statutory scheme pertaining to suspension, remission and commutation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? The Court answered stating yes and no . Explaining further, the larger Bench opined:- An issue of deeper import demands our consideration at this stage of the discussion. Wide as the power of pardon, commutation and release (Articles 72 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course. Here, we come upon the second constitutional fundamental which underlies the submissions of counsel. It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. We proceed on the basis that these axioms are valid in our constitutional order . 17. The majority thereafter dealt with the powers conferred under the constitutional authorities under Articles 72 and 161 and eventually concluded as follows:- 72. . (4) We hold that 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clared 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 constitutional power exercised under Articles 72 and 161 is quite different than the power exercised under a statute. Recently, in Union of India v. V. Sriharan @ Murugan and ors 2015 (13) SCALE 165, echoing the principle stated in Maru Ram (supra), it has been held:- As has been stated by this Court in Maru Ram (supra) by the Constitution Bench, that the Constitutional power of remission provided under Articles 72 and 161 of the Constitution will always remain untouched, inasmuch as, though the statutory power of remission, etc., as compared to Constitution power under Articles 72 and 161 looks similar, they are not the same. Therefore, we confine 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 decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right conferred by Part III of the Constitution and unless a question of enforcement of a fundamental right arises, Article 32 does not apply. It is well settled that no petition under Article 32 is maintainable, unless it is shown that the petitioner has some fundamental right. In Northern Corpn. v. Union of India (1990) 4 SCC 239 this Court has made a pertinent observation that when a person complains and claims that there is a violation of law, it does not automatically involve breach of fundamental right for the enforcement of which alone Article 32 is attracted. 47. We have carefully scanned through the averments and allegations made in the writ petition and found that there is not even a whisper of any infringement of any fundamental right guaranteed by Part III of the Constitution. We reiterate the principle that whenever a person complains and claims that there is a violation of any provision of law or a constitutional provision, it does not automatically involve breach of fundamental 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject. [emphasis in original] 23. In Narendra Champaklal Trivedi v. State of Gujarat (2012) 7 SCC 80, a two-Judge Bench of this Court while dealing with reduction of sentence in respect of mandatory sentence has held:- where the minimum sentence is provided, we think it would not be at all appropriate to exercise jurisdiction under Article 142 of the Constitution of India to reduce the sentence on the ground of the so-called mitigating factors as that would tantamount to supplanting statutory mandate and further it would amount to ignoring the substantive statutory provision that prescribes minimum sentence for a criminal act relating to demand and acceptance of bribe. The amount may be small but to curb and repress this kind of proclivity the legislature has prescribed the minimum sentence . In view of the aforesaid, the argument to invoke Article 142 in conjunction with Article 32 of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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