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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) No. 15 of 2012
Budh Singh ... Petitioner (s)
Versus
State of Haryana and Anr. ...
Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
The petitioner has been convicted under Section 15 of the
Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter for short “the NDPS Act”) by an order of the
learned Sessions Judge, Sirsa, Haryana dated 27.7.1990. He
has been sentenced to undergo RI for a period of 10 years and
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also to pay a fine of Rs. 1,00,000/- (One lakh only), in default,
to suffer further RI for a period of 3 years. The said order has
been confirmed in appeal. The petitioner, on the date of the
filing of the present writ petition, had undergone custody for a
period of more than 7 years. He contends that taking into
account the remissions which would have been due to him
under different Government Notifications/Orders issued from
time to time he would have been entitled to be released from
prison. However, by virtue of the provisions of Section 32A of
the NDPS Act, the benefit of such remissions have been denied
to him resulting in his continued custody. Consequently, by
means of this writ petition under Article 32 of the Constitution,
he has challenged the constitutional validity of Section 32A of
the NDPS Act, inter-alia, on the ground that the said provision
violates the fundamental rights of the petitioner under Articles
14, 20(1) and 21 of the Constitution.
2. Insofar as the challenge founded on violation of Articles 14
and 21 is concerned, the issue stands squarely covered by the
decision of this Court in Dadu alias Tulsidas vs. State ofPage 3
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Maharashtra1
. The following extract from para 15 from the
decision in Dadu (supra) which deals with the contentions
advanced on the basis of Articles 14 and 21 and the views of
this Court on the said contentions amply sums up the situation.
“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 sentenced under
the Act. The procedure prescribed for
holding the trial under the Act cannot be
termed to be arbitrary, whimsical or
fanciful. There is, therefore, 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
1
(2000) 8 SCC 437Page 4
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suspend, remit or commute the sentence
of a convict under the Act.”
3. It is to the challenge founded on alleged violation of Article
20(1) that the attention of the Court will have to be primarily
focused in the present case. Article 20(1) is in the following
terms :
“20. Protection in respect of
conviction for offences.- (1) No person
shall be convicted of any offence except
for violation of a law in force at the time
of the commission of the act charged as
an offence, nor be subjected to a penalty
greater than that which might have been
inflicted under the law in force at the time
of the commission of the offence.”
4. It has been argued on behalf of the petitioner that though
the petitioner has been sentenced to undergo RI for a period of
10 years on being found guilty under Section 15 of the NDPS
Act, the said period of imprisonment must be understood to be
subject to such remissions to which the petitioner would have
been entitled to in the normal course. However, Section 32A
of the NDPS Act by denying the benefit of remissions has, in
fact, enlarged the period of incarceration. According to thePage 5
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petitioner, he is alleged to have committed the offence under
the NDPS Act on 13.12.1988 and was convicted of the said
offence by the learned Trial Court and sentenced accordingly
on 27.7.1990. Section 32A of the NDPS Act was brought into
the statute book by an amendment to the Act with effect from
29.5.1989. Therefore, according to the petitioner, the benefit
of remissions of sentences under the Act being permissible on
the date when he is alleged to have committed the offence, i.e.,
13.12.1988, the exclusion of the said benefit by the
introduction of Section 32A with effect from 29.5.1989 has the
effect of making the petitioner undergo a longer period of
incarceration than what was visualized by the Act as prevailing
on the date of the alleged commission of the crime by the
petitioner.
5. The answer to the above issue raised by the petitioner
would depend on the true and correct meaning of the effect of
the period/periods of remissions earned by a convict under
Section 432 of the Code of Criminal Procedure on the sentence
or penalty that may have been imposed by a court of
competent jurisdiction. Specifically, the question that arises isPage 6
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whether the remission(s) earned by a convict operates as a
reduction of the sentence. The issue arising, is no longer res
integra having been dealt with by a decision of this Court of
somewhat old vintage in Sarat Chandra Rabha and others
vs. Khagendranath Nath and others2
.
6. The facts in Sarat Chandra Rabha (supra) will be
required to be noticed to appreciate the relevance of the view
expressed therein to the context of the present case. In Sarat
Chandra Rabha (supra) the nomination paper of the appellant
Aniram Basumatari for election to the Assam Legislative
Assembly was rejected by the Returning Officer on the ground
that the said person was disqualified under Section 7(b) of the
Representation of the People Act, 1951 (hereinafter for short
“the RP Act”). Under Section 7(b) of the RP Act a person stood
disqualified from being chosen as a Member of the Legislative
Assembly if he is convicted by a Court in India of any offence
and sentenced to imprisonment for not less than two years
unless a period of five years or such lesser period as may be
allowed by the Election Commission, has elapsed since his
2
AIR 1961 Supreme Court 334Page 7
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release. The appellant in Sarat Chandra Rabha (supra) was
convicted of the offence under Section 4(b) of the Explosive
Substances Act, 1908 and sentenced to three years RI on
10.7.1953. On the date of filing of the nomination paper by the
appellant, i.e. on 19th January, 1957, admittedly, the period of
five years since his release had not elapsed. However, the
sentence of three years imposed on the appellant on 10.7.1953
was remitted by the Government of Assam on 8.11.1954 under
Section 401 of the Code of Criminal Procedure, 1898 (Section
432 of the present Code of Criminal Procedure) and the
appellant was released on 14.11.1954. In the above facts, it
was contended before the Election Tribunal that in view of the
remission granted, the sentence imposed on the appellant was
reduced to a period of less than 2 years and therefore the
appellant had not incurred the disqualification under Section
7(b) of the RP Act. The issue raised was answered in favour of
the appellant by the Election Tribunal, which view was,
however, reversed in the appeal filed before the High Court by
the returned candidate. In doing so the High Court was of the
opinion, “that a remission of sentence did not have the samePage 8
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effect as a free pardon and did not have the effect of reducing
the sentence passed on the appellant from three years to less
than two years, even though the appellant might have
remained in jail for less than two years because of the order of
remission.”
7. The matter having reached this Court on the basis of a
certificate granted by the High Court, the question that had
arisen was formulated in the following terms:-
“The main question therefore that falls
for consideration is
whether the order of
remission has the effect of reducing the
sentence in the same way in which an
order of an appellate or revisional
criminal court has the effect of reducing
the sentence passed by the trial court to
the extent indicated in the order of the
appellate or revisional court.”
8. On a detailed examination and scrutiny of the various
dimensions of the question that had arisen, this Court upheld
the view taken by the High Court and answered the question
formulated by it by holding that “….the effect of an order of
remission is to wipe out that part of the sentence of
imprisonment which has not been served out and thus in
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practice to reduce the sentence to the period already
undergone, in law the order of remission merely means that the
rest of the sentence need not be undergone, leaving the order
of conviction by the court and the sentence passed by it
untouched.”
9. In Maru Ram vs. Union of India and Others3
(para 27),
this Court had observed that Article 20(1) of the constitution
engrafts the rule that there can be no ex post facto infliction of
a penalty heavier than what had prevailed at the time of
commission of the offence. Section 32A ex facie has nothing to
do with the punishment or penalty imposed under the Act. In
fact, no change or alteration in the severity of the penalty
under the NDPS Act has been brought about by the introduction
of Section 32A with effect from 29.05.1989. What Section 32A
has done is to obliterate the benefit of remission(s) that a
convict under the NDPS Act would have normally earned. But,
if the correct legal position is that the remission(s) do not in
any way touch or affect the penalty/sentence imposed by a
Court, we do not see how the exclusion of benefit of remission
3 (1981) 1 SCC 107
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can be understood to have the effect of enlarging the period of
incarceration of an accused convicted under the NDPS Act or as
to how the said provision, i.e., Section 32A, can have the effect
of making a convict undergo a longer period of sentence than
what the Act had contemplated at the time of commission of
the offence.
10. For the aforesaid reasons, we find no substance in the
challenge to the provisions of Section 32A of the NDPS Act.
This writ petition, therefore, has to fail and is accordingly
dismissed.
...…………………………J.
[P. SATHASIVAM]
.........……………………J.
[RANJAN GOGOI]
New Delhi,
March 11, 2013.
