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2016 (7) TMI 45 - SUPREME COURT

2016 (7) TMI 45 - SUPREME COURT - TMI - Power of the SC to grant pardon or remission - Conviction u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) - Held that:- 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 consti .....

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:- 29-6-2016 - Dipak Misra And Shiva Kirti Singh, JJ. JUDGMENT Dipak Misra, J. In this writ petition preferred 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 impr .....

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vernor 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 an .....

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ioners 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 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 t .....

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said 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. 4. Learned 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. .....

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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 th .....

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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 .....

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81 provides for special remission. It lays down that special remission may be given to any prisoner except such prisoners who are deprived of remission by way of punishment whether entitled to ordinary remission or not for special reasons. Certain examples have been incorporated in special remission. 8. The Government of Punjab, Department of Home Affairs and Justice through Governor has issued an order in exercise of powers conferred by Section 432 of CrPC and Article 161 of the Constitution of .....

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ection 32-A of the NDPS Act and the judgment delivered in Dadu s case. Section 32-A of the NDPS Act reads as follows:- 32-A. 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. 9. In Dadu s case, the thr .....

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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. State of Punjab (1999) 3 SCC 321 and in that con .....

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ot 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 sentenced under the Act. The procedure prescribed for holding the trial under the Act cannot be termed to be arbitrary, w .....

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opined thus:- 25. Judged from any angle, the section insofar as it completely debars the appellate courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32-A insofar as it ousts the jurisdiction of the court to suspend the sentence awarded to a convict under the Act is unconstitutional. 12. Thereafter, the Court held:- 26. Despite holding that Section 32-A is unconstitutional to the extent it affects the functio .....

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ffending 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 .....

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ses. 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 h .....

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milar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the constitutional power is untouchable and unappro .....

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e President. The necessary sequel to this logic is that notwithstanding Section 433-A the President and the Governor continue to exercise the power of commutation and release under the aforesaid articles. 16. After so stating, the Court posed the question, whether the Parliament has indulged in legislative futility with a formal victory but a real defeat? The Court answered stating yes and no . Explaining further, the larger Bench opined:- An issue of deeper import demands our consideration at t .....

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ution 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 who .....

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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 q .....

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f India. 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 .....

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ight 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 (su .....

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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 .....

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his Court including Maru Ram (supra) . 20. What is being urged is as constitutional powers under Articles 72 and 161 are different and they remain untouched even by sentence of this Court, similar powers can be exercised under Article 32 of the Constitution of India. Article 32 of the Constitution of India enables a citizen to move this Court for enforcement of his fundamental rights. Moving this Court for the said purpose is fundamental. The larger Bench of the Court has already upheld the cons .....

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k relief either under Article 71 or 161 of the Constitution, as the case may be. That is in a different domain. 21. The issue here is whether a writ of mandamus can be issued to authorities to grant remission to the petitioners. In Ramdas Athawale ((2010) 4 SCC 1) v. Union of India and others5, it has been held by the Constitution Bench that:- 46. It is equally well settled that Article 32 of the Constitution guarantees the right to a constitutional remedy and relates only to the enforcement of .....

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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 .....

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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 .....

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- 48. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice between the parties in any cause or matter pending before it . The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties b .....

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