Criminal Writ Petition No.2395 of 2009

26th November, 2009

Petitioner Counsel: Mr. SAGAR JOSHI,Shri. SEKHAR S. BHISE
Respondent Counsel: Mrs. A. S. PAI

Cases Cited:
Dadu Vs. State of Maharashtra, (2000)8 SCC 437 [Para 5,11]
State of Maharashtra Vs. Suresh Pandurang Darvakar, 2006 ALL MR (Cri) 1839 (S.C.)=(2006)4 SCC 776 [Para 10]

JUDGMENT

A. A. SAYED, J.:- By the above petition, the petitioner who is a prisoner, has challenged the validity of Section 32-A of The Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for short) and has further prayed for a declaration that prisoners convicted under NDPS Act are entitled for remission and furlough leave.

2. The petitioner was convicted under NDPS Act and was sentenced to suffer R.I. for a period of 10 years and to pay fine of Rs.1 lac and in default of payment of fine, further R.I. for 3 months. According to the petitioner, he has undergone 9 years of imprisonment and is entitled to claim remission of sentence, however, section 32-A bars remission for any sentences awarded under NDPS Act 1985. It is the case of the petitioner that section 32-A of NDPS Act violates his fundamental rights enshrined under Articles 14 and 21 of the Constitution of India inasmuch as it creates unreasonable distinction between prisoners convicted for the offences under NDPS Act and the prisoners convicted for the offences under various other statutes.

3. We have heard learned Counsel for the petitioner and learned APP for the State.

4. It would be at the outset necessary to quote Section 32-A of NDPS Act 1985. It reads as under :

"32-A. No suspension, remission or commutation in any sentence awarded under this Act.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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."

5. The issue of constitutional validity of section 32-A of NDPS Act 1985 is no more res integra. A three-Judge Bench of Apex Court in the case of Dadu Vs. State of Maharashtra, (2000)8 SCC 437, has considered and elaborately dealt with section 32-A of NDPS Act, including the issue of its constitutional validity. The Apex Court held that the distinction between convicts under the NDPS 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. The Apex Court held that therefore there is no vice of unconstitutionality in the section insofar as it takes away the powers of the executive conferred upon it under Sections 432 and 433 of the Code, to suspend, remit or commute the sentence of a convict under the Act. The Apex Court, however, held that section 32-A 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 was held to be unconstitutional. The Apex Court in para 26 of the said judgment has observed as under :

"26. Despite holding that Section 32-A 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, insofar 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 32-A to be unconstitutional, 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."

In para 29 of the judgment, the Apex Court concluded as under :

"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 strictly subject to the conditions spelt out in Section 37 of the Act, as dealt with in this judgment."

6. In view of the above, the constitutional validity of Section 32-A of NDPS Act 1985, insofar it takes away the right of the executive to suspend, remit and commute the sentence, is held to be valid and intra vires of the Constitution, is no more open to challenge and therefore the challenge in the petition as regards the entitlement of remission of sentence to prisoners under NDPS Act would have to be rejected.

7. Having said that, it must be stated that in the abovementioned case of Dadu Vs. State of Maharashtra, (which the petitioner has himself referred to in his petition), the Apex Court was dealing with not only the constitutional validity of section 32-A of NDPS Act, but also a side issue viz: whether prisoners convicted under NDPS Act can be granted parole. The Apex Court held that parole did not amount to the suspension, remission or commutation of sentence, which could be withheld under the garb of Section 32-A of the Act and that notwithstanding the provisions of the offending section, a convict is entitled to parole, subject however, to the conditions governing the grant of it under the statute, if any, or the jail manual or the government instructions. According to the petitioner, the Apex Court, while dealing with the above case has only considered the issue of parole and not that of furlough. The petitioner therefore contends that prisoners convicted under NDPS Act ought not to be denied furlough leave.

8. Insofar as the issue of grant of furlough is concerned, it may be stated that the grant of furlough is a concession given to the prisoner under the system known as the Prison (Bombay Furlough and Parole) Rules, 1959, ("the said Rules" for short) which rules are framed in exercise of powers conferred by section 59 of the Prisons Act, 1894. Rules 3 and 4 of the said Rules respectively deal with cases when the prisoners may be granted furlough and when shall not be granted furlough. It must be stated that though sub-rule 11 of Rule 4 specifically provides that Prisoners convicted of offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, shall not be entitled to furlough, the said sub-rule is applicable only to the State of Gujarat, having been introduced by the State of Gujarat vide Notification No.GG/73/90JLM - 9950-5139-J dated 9-08-1990. Insofar as the present petitioner is concerned, he being a convict in the State of Maharashtra, the said sub-rule 11 would not be applicable.

9. We may now refer to Rules 16 and 17 of the said Rules. The same are reproduced hereunder :

"16. Furlough to be counted as remission of sentence.- The furlough period shall be counted as remission of sentence :

Provided that where any furlough period has been extended under Note 4 below rule 3 or under rule 13, the period of extension shall not be counted as a remission of sentence.

17. No legal right to furlough.- Nothing in these rules shall be constructed as conferring a legal right on a prisoner to claim release on furlough."

10. In the case of State of Maharashtra and another Vs. Suresh Pandurang Darvakar, (2006)4 SCC 776 : [2006 ALL MR (Cri) 1839 (S.C.)], while dealing with the issue of furlough, the Apex Court has observed that release on furlough cannot be said to be absolute right of the prisoner as culled out from Rule 17.

11. The upshot of the above discussion is that furlough, being counted as remission of sentence under rule 16 of the said Rules and the Apex Court having upheld the constitutional validity of section 32-A of the NDPS Act in Dadu Vs. State of Maharashtra (supra) insofar as it relates to the executive in the matter of suspension, remission and commutation of sentence after conviction, in our view, the grant of furlough essentially being an executive function, the contention of the petitioner that prisoners convicted under the NDPS Act would be entitled to remission and furlough leave, would have to be rejected.

12. In the result, the petition is dismissed. Rule is discharged.

13. Registrar (Judicial) to intimate this order to the petitioner.

Petition dismissed.