Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 973 of 2008
Krishnan & Ors. …Appellants
Versus
State of Haryana & Ors. …Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the judgment and order
dated 22.2.2007 passed by the High Court of Punjab and Haryana at
Chandigarh in Criminal Misc. No. 63845-M of 2006,
wherein the
High Court has upheld the validity of the letter dated 28.6.2006 issued
by the Deputy Inspector General of Prisons, Haryana, giving effect to
the provisions of Section 32-A of Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred to as `NDPS Act’).
2. The High Court referring to various provisions of the Punjab
Jail Manual held that the appellants are not entitled to any remission
Page 2
in view of the provisions of Section 32-A of NDPS Act.
Section 32-A
of the NDPS is reproduced herein as under:
“32A. 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.”
3. The High Court has held that legal provisions concerning
remission are governed by the statutory provisions as laid down in
Punjab Jail Manual rather than under Article 161 of the Constitution
of India. The provisions of Section 32-A of NDPS Act would have
overriding effect, notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C.’), or any
other law for the time being in force. Thus, the appellants were not
entitled for the relief sought by them.
4. This Court while examining the issue, has considered the three
Judge Bench judgment of this Court in Dadu @Tulsidas v. State of
Maharashtra, (2000) 8 SCC 437, wherein the validity of the said
provisions was challenged. Relevant part of the judgment reads as
under:
2Page 3
“1…….The section is alleged to be arbitrary,
discriminatory and violative of Articles 14 and 21 of the
Constitution of India which creates unreasonable
distinction between the prisoners convicted under the Act
and the prisoners convicted for the offences punishable
under various other statutes. It is submitted that the
legislature is not competent to take away, by statutory
prohibition, the judicial function of the court in the
matter of deciding as to whether after the conviction
under the Act the sentence can be suspended or not. The
section is further assailed on the ground that it has
negated the statutory provisions of Sections 389, 432 and
433 of the Code of Criminal Procedure.……. It is further
contended that the legislature cannot make relevant
considerations irrelevant or deprive the courts of their
legitimate jurisdiction to exercise the discretion. It is
argued that taking away the judicial power of the
appellate court to suspend the sentence despite the
appeal meriting admission, renders the substantive right
of appeal illusory and ineffective.
xxx xxx xxx xxx xxx
15. The restriction imposed under the offending section,
upon the executive are claimed to be for a reasonable
purpose and object sought to be achieved by the Act.
Such exclusion cannot be held unconstitutional, on
account of its not being absolute in view of the
constitutional powers conferred upon the executive.
Articles 72 and 161 of the Constitution empowers the
President and the Governor of a State to grant pardons,
reprieves, respites or remissions of punishments or to
suspend, remit or commute the sentence of any person
convicted of any offence against any law relating to a
matter to which the executive power of the Union and
State exists…..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
3Page 4
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 suspend, remit or
commute the sentence of a convict under the Act.
16. Learned counsel appearing for the parties were
more concerned with the adverse effect of the section
on the powers of the judiciary. Impliedly conceding that
the section was valid so far as it pertained to the
appropriate Government, it was argued that the
legislature is not competent to take away the judicial
powers of the court by statutory prohibition as is shown
to have been done vide the impugned section. Awarding
sentence, upon conviction, is concededly a judicial
function to be discharged by the courts of law
established in the country. It is always a matter of
judicial discretion, however, subject to any mandatory
minimum sentence prescribed by the law. The award of
sentence by a criminal court wherever made subject to
the right of appeal cannot be interfered or intermeddled
with in a way which amounts to not only interference but
actually taking away the power of judicial review.
Awarding the sentence and consideration of its legality
or adequacy in appeal is essentially a judicial function
embracing within its ambit the power to suspend the
sentence under the peculiar circumstances of each case,
pending the disposal of the appeal.
xxx xxx xxx xxx xxx
4Page 5
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……..
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.
27. Holding Section 32-A as void insofar as it takes
away the right of the courts to suspend the sentence
awarded to a convict under the Act, would neither
entitle such convicts to ask for suspension of the
sentence as a matter of right in all cases nor would it
absolve the courts of their legal obligations to exercise
the power of suspension of sentence within the
parameters prescribed under Section 37 of the Act.
xxx xxx xxx xxx
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. (Emphasis added)
5Page 6
5. Thus, it is evident from the aforesaid judgment that the validity
of the aforementioned provisions, so far as the competence of the
court is concerned, was partly struck down. As to the question of
imposing complete embargo on remission and commutation in the
context of Articles 72 and 161 of the Constitution of India, the issue
was not conclusively decided by the court. More so, in paragraph 15,
the reference has been made that such exclusion cannot be held as
unconstitutional on account of it not being absolute, in view of the
constitutional powers conferred upon the executives. Articles 72 and
161 of the Constitution empower the President of India and the
Governor of a State to grant pardons, reprieves, respites or remissions
of punishments or to suspend, remit or commute the sentence of any
person convicted of any offence against any law relating to a matter to
which the executive power of the Union and State exists.
6. A two Judge Bench of this Court heard the matter on 8.1.1993
and prima facie had been of the view that on a plain reading of
Section 32-A of NDPS Act, it appeared to be quite draconian and to
understand the matter further, the Court requested Shri Huzefa
6Page 7
Ahmadi, learned senior counsel and Shri Paras Kuhad, learned
Additional Solicitor General, to assist the Court as Amicus Curiae, as
to whether Section 32-A of NDPS Act, would apply to the clemency
powers of the President of India and the Governor of the State and
what could be its applicability with respect to the statutory rules
which have been framed by the State, in exercise of its executive
powers under the Constitution. In view thereof, both Shri Huzefa
Ahmadi, learned senior counsel and Shri Paras Kuhad, learned ASG
made their submissions pointing out that the powers of clemency
under Articles 72 and 161 of the Constitution, cannot be controlled by
any statute and, therefore, it requires a clarification that the provisions
of Section 32-A of NDPS Act cannot be a fetter to the said powers of
clemency by any means whatsoever.
7. In fact, Articles 72 and 161 of the Constitution provide for
residuary sovereign power, thus, there could be nothing to debar the
concerned authorities to exercise such power even after rejection of
one clemency petition and even in the changed circumstances. (Vide:
Krishta Goud and J. Bhoomaiah v. State of Andhra Pradesh &
Ors., (1976) 1 SCC 157).
7Page 8
8. In State of Haryana & Ors. v. Jagdish, AIR 2010 SC 1690,
this Court has considered as under:
“33. Articles 72 and 161 of the Constitution provide for
a residuary sovereign power, thus, there can be nothing
to debar the concerned authority to exercise such power,
even after rejection of one clemency petition, if the
changed circumstances so warrant.
xx xx xx xx
35. In view of the above, it is evident that the clemency
power of the Executive is absolute and remains
unfettered for the reason that the provisions contained
under Article 72 or 161 of the Constitution cannot be
restricted by the provisions of Sections 432, 433 and
433-A Cr.PC. though the Authority has to meet the
requirements referred to hereinabove while exercising
the clemency power.
To say that clemency power under Articles 72/161 of the
Constitution cannot be exercised by the President or the
Governor, as the case may be, before a convict
completes the incarceration period provided in the shortsentencing policy, even in an exceptional case, would be
mutually inconsistent with the theory that clemency
power is unfettered.
The Constitution Bench of this Court in Maru Ram, (AIR
1980 SC 2147) (supra) clarified that not only the
provisions of Section 433-A Cr. P.C., would apply
prospectively but any scheme for short sentencing
framed by the State would also apply prospectively. Such
a view is in conformity with the provisions of Articles
20(1) and 21 of the Constitution. The expectancy of
period of incarceration is determined soon after the
conviction on the basis of the applicable laws and the
established practices of the State. When a short
8Page 9
sentencing scheme is referable to Article 161 of the
Constitution, it cannot be held that the said scheme
cannot be pressed in service. Even if, a life convict does
not satisfy the requirement of remission rules/short
sentencing schemes, there can be no prohibition for the
President or the Governor of the State, as the case may
be, to exercise the power of clemency under the
provisions of Articles 72 and 161 of the Constitution.
Right of the convict is limited to the extent that his case
be considered in accordance with the relevant rules etc.,
he cannot claim premature release as a matter of right.”
9. In State of Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC
537, this Court held that commutation of death sentence to a specified
term of imprisonment without entitlement to premature release is the
via media found by courts, where considering the facts and
circumstances of a particular case, the court has come to the
conclusion that it was not "the rarest of rare cases", warranting death
penalty, but a sentence of 14 years or 20 years, as referred to in the
guideline laid down by the States, would be totally inadequate. Life
imprisonment cannot be equivalent to imprisonment for 14 years or 20
years, rather it always means the whole natural life. This Court has
always clarified that the punishment of a fixed term of imprisonment
so awarded would he subject to any order passed in exercise of the
clemency powers of the President of India or the Governor of the
State, as the case may be. Pardons, reprieves and remissions under
9Page 10
Article 72 or Article 161 of the Constitution are granted in exercise of
prerogative power. There is no scope of Judicial review of such orders
except on very limited grounds. The power to grant pardons and to
commute sentences is coupled with a duty to exercise the same fairly
and reasonably. Administration of justice cannot he perverted by
executive or political pressure. Of course, adoption of uniform
standards may not be possible while exercising the power of pardon.
Thus, directions of the court specifying a minimum term of
incarceration do not interfere with the sovereign power of the State.
Such directions have been passed by courts considering the gravity of
the offences directing that the accused would not be entitled to be
considered for premature release under the guidelines issued for that
purpose i.c. under Jail Manual, etc. or even under Section 433-A
Cr.P.C.
10. In Epuru Sudhakar & Anr. v. Government of A.P. & Ors.,
(2006) 8 SCC 161, this Court held as under:
“34. The position, therefore, is undeniable that
judicial review of the order of the President or the
Governor under Article 72 or Article 161, as the case
may be, is available and their orders can be impugned
on the following grounds:
(a) that the order has been passed without application
of mind;
1Page 11
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or
wholly irrelevant considerations;
(d) that relevant materials have been kept out of
consideration;
(e) that the order suffers from arbitrariness.”
11. It has further been submitted by the said learned senior counsel
that reading down of provisions of Section 32-A of NDPS Act will not
serve the purpose and he has placed a very heavy reliance on the
judgment of this Court in Union of India & Ors. v. Ind-Swift
Laboratories Limited, (2011) 4 SCC 635, wherein the Court
observed:
“19. This Court has repeatedly laid down that in the
garb of reading down a provision it is not open to read
words and expressions not found in the provision/statute
and thus venture into a kind of judicial legislation. It is
also held by this Court that the rule of reading down is to
be used for the limited purpose of making a particular
provision workable and to bring it in harmony with other
provisions of the statute.”
12. In Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay, AIR 1962 SC 853, this Court while dealing with the people
of Bohra community, while interpreting the provisions of Article 25
and 26 of the Constitution, and dealing with the particular Act held as
under:
1Page 12
“It is not possible in the definition of excommunication
which the Act carries, to read down the Act so as to
confine excommunication as a punishment of offences
which are unrelated to the practice of the religion which
do not touch and concern the very existence of the faith
of the denomination as such. Such an exclusion cannot
be achieved except by rewriting the section.”
Thus, it is submitted that as far as the plain language of Section
32-A of NDPS Act is concerned, it is absolute in its terms and gives
no leeway for remission or commutation of any sentence or any
ground whatsoever, thus contrary to the mandate of Articles 72 and
161. There is no scope for reading down the section, as the language
is absolute in its terms and the same cannot be read down without
doing violence to the language.
13. From the above, it is evident that the petition raises the
following substantial questions of law:
I. Whether Section 32A NDPS Act is violative of Articles 72 and
161 of the Constitution of India.
II. Whether Section 32A NDPS Act is violative of Articles 14 and
21 of the Constitution of India, inasmuch, as the same abrogates
the rights of an accused/convict under the Act to be granted
remission/commutation, etc.
1Page 13
14. In Coir Board Ernakulam & Anr. v. Indira Devai P.S. &
Ors., (2000) 1 SCC 224, this Court while dealing with a similar
reference by a Bench of two Judges doubting the correctness of seven
Judges’ Bench judgment in Bangalore Water Supply & Sewerage
Board v. A Rajappa, AIR 1978 SC 548, held as under:-
“The judgment delivered by the seven learned Judges of
the Court in Bangalore Water Supply case, does not, in
our opinion, require any reconsideration on a reference
being made by a two Judge Bench of the Court, which is
bound by the judgment of the larger Bench. The appeals
shall, therefore, be listed before the appropriate Bench
for further proceedings.”
15. The Constitution Bench of this Court in Pradip Chandra
Parija & Ors. v. Pramod Chandra Patnaik & Ors., AIR 2002 SC
296,
while dealing with a similar situation held that judgment of a coordinate Bench or larger Bench is binding.
However, if a Bench of
two Judges concludes that an earlier judgment of three Judges is so very incorrect that in no circumstances it can be followed, the proper course for it to adopt is to refer the matter to a Bench of three Judges setting out, the reasons why it could not agree with the earlier judgment.
If, then, the Bench of three Judges also comes to the
conclusion that the earlier judgment of a Bench of three Judges is
1Page 14
incorrect, reference to a Bench of five Judges is justified.
(See also:
Union of India & Anr. v. Hansoli Devi, (2002) 7 SCC 273)
16. In view of the above, we are of the opinion that the matter
requires to be considered by a larger bench, either by a three Judges
Bench first or by a five Judges Bench directly. The papers may be
placed before Hon’ble the Chief Justice of India for appropriate
orders.
………………………………..................................J.
(Dr. B.S. CHAUHAN)
………………………………...................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
May 7, 2013.
1
