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CASE NO.: Writ Petition (crl.) 169  of  1999 Writ Petition (crl.)    243      of  1999

PETITIONER: DADU @ TULSIDAS

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       12/10/2000

BENCH: K.T.Thomas, R.P. Sethi & S.N. Variava.

JUDGMENT:

SETHI, J: L...I...T.......T.......T.......T.......T.......T.......T..J

   The  Constitutional  validity  of  Section  32A  of  the Narcotic  Drugs  and  Psychotropic   Substances  Act,   1985 (hereinafter referred to as "the Act") is under challenge in these  petitions filed by the convicts of the offences under the   Act.   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 (hereinafter referred to as "the Code")  in  the matter of deciding as to whether  after  the conviction  under  the  Act the sentence can  be  suspended, remitted   or   commuted  or  not   and  also   under   what circumstances, restrictions or limitations on the suspension of  sentences  or the grant of bail could be passed.  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.  According to one of the petitioners,  the prohibition  of  suspension  precludes  the  Executive  from granting parole to a convict who is otherwise entitled to it under  the  prevalent  statutes, jail manual  or  Government instructions issued in that behalf.

   The  petitioner  in W.P.No.169/99 was arrested and  upon conviction  under Section 21 of the Act sentenced to undergo@@             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

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imprisonment  for  10  years.   He claims  to  have  already@@ JJJJJJJJJJJJJJJJJJJJJ undergone  sentence  for  more than 7 years.  He  could  not claim  parole  presumably under the impression that  Section 32A  of the act was a bar for the State to grant it.  Though the  petitioner  has  referred to Maharashtra  Jail  Manual, particularly  Chapter  XXXVIII  providing various  kinds  of remissions  and authorising the grant of parole yet  nothing is  on  the record to show as to whether he in fact  applied for parole or not.

   Petitioner in W.P.243 of 1999, after trial was convicted under  the  Act  and  the  bail  application  filed  by  him alongwith  appeal presented in the High Court was  dismissed as  not  pressed  in view of the judgment of this  Court  in Maktool Singh v.  State of Punjab [JT 1999 (2) SC 176].  The vires  of  the  section have been defended by the  Union  of India  on the ground that as the Parliament has jurisdiction to   enact  the  law  pertaining   to  Narcotic  Drugs   and Psychotropic  Substances Act, reasonable restrictions can be imposed  upon  the right of the convict to file  appeal  and seek release, remission or commutation.  The Act is intended to  curb the drug addiction and trafficking which is  termed to  be eating into the vitals of the economy of the country. The  illicit  money generated by drug trafficking  is  being used  for  illicit  activities  including  encouragement  of terrorism.   Anti-drug  justice  has been claimed  to  be  a criminal  dimension of social justice.  It is submitted that statutory  control  over narcotic drugs in India  was  being generally  exercised  through  certain  Central  enactments, though  some of the States had also enacted certain statutes to deal with illicit traffic in drugs.  Reference is made to the  Opium  Act  and the Dangerous Drugs Act  etc.   In  the absence   of  comprehensive  law   to  effectively   control psychotropic  substances  in  the manner  envisaged  by  the International Convention of Psychotropic Substances, 1971, a necessity  was felt to enact some comprehensive  legislation on the subject.  With a view to meet the social challenge of great   dimensions,  the  Parliament   enacted  the  Act  to consolidate  and  amend the existing provisions relating  to control  over  drug  abuse  and   to  provide  for  enhanced penalties  under  the  Act.  The Act provides  enhanced  and stringent penalties.  The offending section is claimed to be not  violative of Articles 14, 19 and 21 of the Constitution of  India.   To fulfil the international obligations and  to achieve  the  objectives  of curbing the menace  of  illegal trafficking,  the Section was enacted not only to take  away the power of the Executive under Section 433 of the Code but also  the power under the Code to suspend, remit or  commute the  sentences passed under the Act.  The convicts under the Act  are  stated to be a class in themselves justifying  the discrimination  without  offending   guarantee  of  equality enshrined   in   the    Constitution.     To   support   the Constitutional validity of the Section, the respondents have also relied upon the Lok Sabha debates on the subject.

   Before  dealing  with  the   main  issue  regarding  the validity  of  Section 32A, a side issue, projected  in  Writ Petition  No.169,  is required to be dealt with.   The  writ petition  appears to be based upon the misconception of  the provisions   of  law  and  in   ignorance  to  the   various pronouncements of this Court.

   Parole is not a suspension of the sentence.  The convict

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continues  to  be serving the sentence despite  granting  of parole  under  the  Statute,  Rules,   Jail  Manual  or  the Government orders.  "Parole" means the release of a prisoner temporarily  for  a special purpose before the expiry  of  a sentence,  on  the promise of good behaviour and  return  to jail.  It is a release from jail, prison or other internment after actually been in jail serving part of sentence.

   Grant  of parole is essentially an Executive function to be  exercised  within the limits prescribed in that  behalf. It  would  not be open to the court to reduce the period  of detention  by  admitting  a detenue or  convict  on  parole. Court  cannot  substitute the period of detention either  by abridging  or  enlarging  it.  Dealing with the  concept  of parole and its effect on period of detention in a preventive detention  matter,  this  Court  in  Poonam  Lata  v.   M.L. Wadhawan [1987 (3) SCC 347] held:

   "There  is  no  denying  of  the  fact  that  preventive detention is not punishment and the concept of serving out a sentence  would  not legitimately be within the  purview  of preventive detention.  The grant of parole is essentially an executive  function  and instances of release of detenus  on parole  were literally unknown until this Court and some  of the  High  Courts  in India in recent years made  orders  of release   on   parole    on   humanitarian   considerations. Historically ’parole’ is a concept known to military law and denotes  release of a prisoner of war on promise to  return. Parole  has  become  an  integral part of  the  English  and American  systems  of criminal justice intertwined with  the evolution of changing attitudes of the society towards crime and  criminals.   As  a consequence of the  introduction  of parole  into  the penal system, all fixed-term sentences  of imprisonment  of  above 18 months are subject to release  on licence,  that  is,  parole after a third of the  period  of sentence  has  been served.  In those countries,  parole  is taken  as  an act of grace and not as a matter of right  and the  convict  prisoner may be released on condition that  he abides  by  the promise.  It is a provisional  release  from confinement  but is deemed to be a part of the imprisonment. Release  on parole is a wing of the reformative process  and is  expected  to  provide  opportunity to  the  prisoner  to transform  himself into a useful citizen.  Parole is thus  a grant  of partial liberty of lessening of restrictions to  a convict  prisoner, but release on parole does not change the status   of  the  prisoner.    Rules  are  framed  providing supervision  by parole authorities of the convicts  released on parole and in case of failure to perform the promise, the convict  released  on  parole is directed  to  surrender  to custody.   (See  The  Oxford  Companion to  Law,  edited  by Walker, 1980 Edn.  p.931;  Black’s Law Dictionary, 5th Edn., P.1006;   Jowitt’s Dictionary of English Law, 2nd Edn., Vol. 2,  p.1320;   Kenny’s Outlines of Criminal Law;  17th  Edn., pp.574-  76;   the English Sentencing System by  Sir  Rupert Cross  at pp.31-34;  87 et seq;  American Jurisprudence, 2nd Edn.,  Vol.59,  pp.53-61;   Corpus Juris  Secundum,  Vol.67; Probation  and Parole, Legal and Social Dimensions by  Louis P.   Carney).  It follows from these authorities that parole is the release of a very long terms prisoner from a penal or correctional  institution after he has served a part of  his sentence under the continuous custody of the State and under conditions  that  permit his incarceration in the  event  of misbehaviour".

   This  position was again reiterated in State of  Haryana

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v.  Mohinder Singh [2000 (3) SCC 394].@@              JJJJJJJJJJJJJJJJJJJJJJJJJ

   The  Constitution Bench of this Court in Sunil  Fulchand Shah  v.   Union  of  India  &  Ors.   [2000  (3)  SCC  409]@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ considered  the  distinction between bail and parole in  the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJ context  of  reckoning  the  period which a  detenu  has  to undergo in prison and held:

   "Bail  and  parole  have different connotation  in  law. Bail  is  well  understood  in  criminal  jurisprudence  and Chapter  XXXIII  of the Code of Criminal Procedure  contains elaborate  provisions  relating to grant of bail.   Bail  is granted  to a person who has been arrested in a non-bailable offence  or  has been convicted of an offence  after  trial. The  effect of granting bail is to release the accused  from internment  though the court would still retain constructive control  over him through the sureties.  In case the accused is  released on his own bond such constructive control could still  be  exercised  through  the conditions  of  the  bond secured from him.  The literal meaning of the word ’bail’ is surety.   In  Halsbury’s Laws of England, 4th Edn.,  Vol.11, Para  166,  the following observation succinctly brings  out the effect of bail:

   The  effect of granting bail is not to set the defendant (accused)  at liberty but to release him from the custody of law  and  to entrust him to the custody of sureties who  are bound  to produce him to appear at his trial at a  specified time  and place.  The sureties may seize their principal  at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.

   ’Parole’, however, has a different connotation than bail even  though  the substantial legal effect of both bail  and parole  may  be  the release of a person from  detention  or custody.  The dictionary meaning of "parole" is:

The Concise Oxford Dictionary - (New Edition)

   "The  release  of a prisoner temporarily for  a  special purpose  or  completely before the expiry of a sentence,  on the  promise of good behaviour;  such a promise;  a word  of honour"

   Black’s Law Dictionary - (6th Edition)

   "Release  from  jail, prison or other confinement  after actually serving part of sentence.  Conditional release from imprisonment  which  entitles parolee to serve remainder  of his  term  outside  confides  of   an  institution,  if   he satisfactorily  complies  with  all   terms  and  conditions provided in parole order."

   According  to the Law Lexicon, "Parole" has been defined as:

   "A  parole is a form of conditional pardon, by which the convict  is  released before the expiration of his term,  to remain subject, during the remainder thereof, to supervision by  the  public authority and to return to  imprisonment  on violation of the condition of the parole."

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   According to Words and Phrases:

   "Parole" ameliorates punishment by permitting convict to serve  sentence outside of prison walls, but parole does not interrupt  sentence.  People ex rel Rainone v.  Murphy  [135 NE 2d 567, 571, 1 NY 2d 367, 153 NYS 2d 21, 26].

   ’Parole  does not vacate sentence imposed, but is merely a  conditional  suspension of sentence.  Wooden  v.   Goheen [Ky, 255 SW 2d 1000, 1002].

   A  ’parole’ is not a ’suspension of sentence’, but is  a substitution,  during continuance of parole, of lower  grade of  punishment  by  confinement in legal custody  and  under control of warden within specified prison bounds outside the prison,  for  confinement within the prison adjudged by  the court.  Jenkins v.  Madigan [CA Ind, 211 F 2d 904, 906].

   A  ’parole’  does  not suspend or curtail  the  sentence originally  imposed  by  the  court  as  contrasted  with  a ’commutation of sentence’ which actually modifies it".

   Again  in  State  of Haryana v.  Nauratta Singh  &  Ors. [2000 (3) SCC 514] it was held by this Court as under:@@               JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

   "Parole relates to executive action taken after the door has been closed on a convict.  During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also."

   It  is  thus  clear that parole did not  amount  to  the suspension,  remission  or  commutation of  sentences  which could  be withheld under the garb of Section 32A of the Act. 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.  The Writ  Petition  No.169  of  1999 apparently  appears  to  be misconceived  and  filed in a hurry without approaching  the appropriate  authority for the grant of relief in accordance with jail manual applicable in the matter.

   We will now deal with the crux of the matter relating to the  constitutional validity of Section 32A in the light  of the challenge thrown to it.  Section 32A of the Act reads:

   "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."

   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,

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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.  Section 433 empowers the appropriate Government to commute:

   "(a)  a  sentence  of death, for  any  other  punishment provided by the Indian Penal Code;

   (b)   a   sentence  of   imprisonment  for   life,   for imprisonment  for a term not exceeding fourteen years or for fine;

   (c)  a  sentence  of rigorous imprisonment,  for  simple imprisonment  for  any term to which that person might  have been sentenced, or for fine;

   (d) a sentence of simple imprisonment, for fine."

   However,  Section 389 of the Code empowers an  appellate court to suspend the sentence pending the appeal and release@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ the  appellant on bail.  Section 32A of the Act,  therefore,@@ JJJJJJJJJJJJJJJJJ takes  away  the powers both of the Appellate Court and  the State  Executive in the matter of suspending, remitting  and commuting  the sentence of a person convicted under the  Act other than for an offence under Section 27 of the Act.  This Court  in Maktool Singh’s case (supra) held that Section 32A of  the  Act was a complete bar for the Appellate  Court  to suspend  a sentence passed on persons convicted of  offences under  the  Act (except under Section 27) either during  the pendency  of any appeal or otherwise.  It has an  overriding effect  with regard to the powers of suspension, commutation and  remission provided under the Code.  After referring  to some  conflicting  judgments of the High Courts, this  Court concluded:   "The  upshot  of the above discussion  is  that Section  32A  of  the Act has taken away the powers  of  the court  to suspend a sentence passed on persons convicted  of offences  under  the Act (except Section 27)  either  during pendency  of any appeal or otherwise.  Similarly, the  power of  the  Government under Sections 432, 433 and 434  of  the Criminal  Procedure Code have also been taken away.  Section 32A  would  have  an overriding effect with  regard  to  the powers  of  suspension, commutation and  remission  provided under the Criminal Procedure Code."

   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  President and the 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.  For the exercise of aforesaid constitutional powers  circulars  are  stated to have been  issued  by  the appropriate  Governments.  It is further submitted that  the circulars   prescribe  limitations  both   as  regards   the prisoners who are eligible and those who have been excluded. The  restriction  imposed  upon  the  Executive,  under  the

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Section,  appears to be for a reasonable purpose and  object sought  to  be  achieved by the Section.  While  moving  the Amendment   Bill,  which  included   Section  32A,  in   the Parliament  on 16th December, 1988, the Minister of State in Department  of Revenue in the Ministry of Finance  explained to  the  Parliament  that the country had  been  facing  the problem  of transit traffic in illicit drugs which had  been escalated  in  the  recent past.  The spill-over  from  such traffic  had  been causing problems of abuse and  addiction. The  Government  was  concerned  with  the  developing  drug situation  for which a number of legislative, administrative and preventive measures had been taken resulting in checking the  transit  traffic  to a considerable  extent.   However, increased  internal  drug traffic, diversion of  opium  from illicit growing areas and attempts of illicit manufacture of drugs within the country threatened to undermine the effects of  the  counter  measures  taken.    Keeping  in  mind  the magnitude  of  the  threat from drug  trafficking  from  the Golden  Crescent region comprising Pakistan, Afghanistan and Iran  and  the  Golden  Triangle  region  comprising  Burma, Thailand  and  Laos  and  having   regard  to  the  internal situation,  a  14  point directive was stated to  have  been issued  by the then Prime Minister on 4th April, 1988, as  a new  initiative  to combat drug trafficking and drug  abuse. Keeping in mind the working of the 1985 Act, the Cabinet Sub Committee  recommended  that  the Act be  suitably  amended, inter alia, :

   "(i)  to  provide  for the constitution of  a  fund  for control  of drug abuse and its governing body.  The Fund  is to  be  financed by such amounts as may be provided  by  the Parliament,  the  sale  proceeds of any  property  forfeited under  the Act and any grants that may be made by any person or institution;

   (ii)  to provide for death penalty on second  conviction in  respect  of  specified   offences  involving   specified quantities of certain drugs;

   (iii) to provide that no sentence awarded under the Act, other  than  section  27, should be suspended,  remitted  or commuted;

   (iv) to provide for constitution of Special Courts;

   (v)  to provide that every offence punishable under this Act shall be cognizable and non-bailable;

   (vi) to provide immunity from prosecution to the addicts volunteering for treatment for deaddiction or detoxification once in their life time;

   (vii)  to  bring  certain substances which  are  neither narcotic  drugs nor psychotropic substances but are used  in the  manufacture or production of these drugs or substances, under  the  ambit  of the Act.  Such  controlled  substances would be regulated by issue or order;

   (viii)  violation  of  the provisions  relating  to  the controlled  substances  would be liable for punishment  with rigorous  imprisonment  for  a term which may extend  to  10 years and fine which may extend to Rs.1 lakh;

   (ix)  financing  illicit  traffic  and  harbouring  drug offenders would be offences liable to punishment at the same

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level as per drug traffic offences."

   The  distinction of the convicts under the Act and under other  statutes, in so far as it relaters to the exercise of the  Executive Powers under Sections 432 and 433 of the Code is  concerned,  cannot  be  termed to  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, in so far 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 in so far 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.

   Learned  counsel  appearing  for the parties  were  more concerned  with  the  adverse effect of the Section  on  the@@                  JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ powers  of  the  judiciary.  Impliedly  conceding  that  the@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJ 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.

   Not  providing atleast one right of appeal, would negate the  due  process  of law in the matter of  dispensation  of criminal  justice.   There  is no doubt that  the  right  of appeal  is  the creature of a statute and when conferred,  a substantive  right.  Providing a right of appeal but totally disarming the court from granting interim relief in the form of  suspension  of  sentence  would be  unjust,  unfair  and violative  of  Article 21 of the  Constitution  particularly when  no  mechanism  is provided for early disposal  of  the appeal.   The  pendency  of   criminal  litigation  and  the experience  in  dealing  with pending  matters  indicate  no possibility  of early hearing of the appeal and its disposal on  merits  atleast in many High Courts.  As the present  is not  the occasion to dilate on the causes for such delay, we restrain  ourselves from that exercise.  In this view of the matter,  the appellate powers of the court cannot be denuded

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by Executive or judicial process.

   This  Court  in  Bhagwan Rama Shinde Gosai  &  Ors.   v. State  of  Gujarat  [AIR  1999  SC 1859  held  that  when  a convicted  person is sentenced to a fixed period of sentence and  the appellate court finds that due to practical reasons the  appeal cannot be disposed of expeditiously, it can pass appropriate   orders  for  suspension   of  sentence.    The suspension  of  the  sentence by the  appellate  court  has, however,  to be within the parameters of the law  prescribed by  the  Legislature or spelt out by the courts by  judicial pronouncements.  The exercise of judicial discretion on well recognised  principles is the safest possible safeguards for the  accused  which  is  at the very core  of  criminal  law administered  in India.  The Legislature cannot,  therefore, make  law  to  deprive  the   courts  of  their   legitimate jurisdiction  conferred  under the procedure established  by law.

   Thomas M.  Cooley in his "Treatise on the Constitutional Limitations"  8th  Edition observed that if the  Legislature cannot  thus indirectly control the action of the courts  by requiring of them a construction of the law according to its own  views,  it is very plain it cannot do so  directly,  by setting  aside their judgments, compelling them to grant new trials,  ordering  the discharge of offenders, or  directing what  particular  steps shall be taken in the progress of  a judicial  inquiry.   In Denny v.  Mattoon[2 Allen, 361],  it was stated:

   "If,  for example, the practical operation of a  statute is  to  determine adversary suits pending between party  and party, by substituting in place of the well settled rules of law  the  arbitrary  will of the  legislature,  and  thereby controlling  the  action  of the tribunal before  which  the suits  are  pending,  no one can doubt that it would  be  an unauthorised  act  of  legislation,   because  it   directly infringes  on the peculiar and appropriate functions of  the judiciary.  It is exclusive province of courts of justice to apply   established  principles  to   cases   within   their jurisdiction,  and  to enforce their decisions by  rendering judgments  and  executing  them by  suitable  process.   The legislature   have   no  power  to   interfere   with   this jurisdiction  in  such manner as to change the  decision  of cases pending before courts, or to impair or set aside their judgments,  or  to take cases out of the settled  course  of judicial  proceeding.   It is on this principle that it  has been  held that the legislature have no power to grant a new trial  or direct a rehearing of a cause which has been  once judicially  settled.  The right of a review, or to try a new facts  which  have been determined by a verdict  or  decree, depends  on  fixed and well-settled principles, which it  is the  duty  of the court to apply in the exercise of a  sound judgment  and  discretion.   These cannot  be  regulated  or governed by legislative action".

   Cooley  further  opined  that forfeiture of  rights  and property   cannot   be   adjudged    by   legislative   act, confiscations  without  a judicial hearing after due  notice would  be  void as not being due process of law.  Rights  of the  parties, without the authority of passing consequential or interim orders in the interest of justice, would not be a substantive one.

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   Offending  Section  is  stated to have been  enacted  in discharge of the international obligations as claimed by the concerned  Minister in the Parliament.  This submission also appears  to be without any substance.  Countries, parties to the  United  Nations Convention Against Illicit  Traffic  in Narcotic Drugs and Psychotropic Substances, 1988, in the 6th Plenary  Meeting  held  on 19th December, 1988  resolved  to adopt  means  and measures to curb the rising trend  in  the illicit  production  of demand for and traffic  in  narcotic drugs  and  psychotropic  substances which posed  a  serious threat  to  the health and welfare of the human  beings  and adversely  affected  the  economic, cultural  and  political foundations  of  the Society.  The member  countries,  inter alia  agreed  to adopt such measures as may be necessary  to establish  as  criminal  offences in its domestic  law  when committed intentionally:

   "(a)   (i)  The   production,  manufacture,  extraction, preparation,  offering,  offering  for  sale,  distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch  in transit, transport, importation or  exportation of  any narcotic drug or any psychotropic substance contrary to  the  provisions  of  the   1961  Convention,  the   1961 Convention as amended or the 1971 Convention;

   ii)  The  cultivation  of  opium  poppy,  coca  bush  or cannabis plant for the purpose of the production of narcotic drugs  contrary to the provisions of the 1961 Convention and 1961 Convention as amended;

   iii)  The possession or purchase of any narcotic drug or psychotropic  substance  for  the  purpose  of  any  of  the activities enumerated in (i) above;

   iv)  The  manufacture,  transport,  or  distribution  of equipment,  materials or of substances listed in Table I and Table  II,  knowing that they are to be used in or  for  the illicit  cultivation, production or manufacture of  narcotic drugs or psychotropic substances;

   v)  The organisation, management or financing of any  of the offences enumerated in (i), (ii), (iii) or (iv) above;

   (b)  (i) The conversion or transfer of property, knowing that  such property is derived from any offence or  offences@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ established  in  accordance  with subparagraph (a)  of  this paragraph,  or from an act, of participation in such offence or offences, for the purpose of concealing or disguising the illicit  original of the property or of assisting any person who  is  involved  in the commission of such an  offence  or offences to evade the legal consequences of his actions,

   iii)  The  concealment or disguise of the  true  nature, source,  location, disposition, movement rights with respect to,  or ownership of property, knowing that such property is derived   from  an  offence  or  offences   established   in accordance  with paragraph (a) of this paragraph or from  an act of participation in such an offence or offences;

   It was further agreed that subject to the constitutional principles  and  the basic concept of its legal system  each country shall provide for:

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   "(i)  The  acquisition, possession or use  of  property, knowing,  at  the  time of receipt, that such  property  was derived   from  an  offence  or  offences   established   in accordance  with subparagraph (a) of this paragraph or  from an act of participation in such offence or offences;

   (ii)  The  possession  of   equipment  or  materials  or substances listed in Table I and Table II, knowing that they are  being  or  are  to  be  used  in  or  for  the  illicit cultivation,  production or manufacture of narcotic drugs or psychotropic substances;

   (iii)Publicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this  article  or  to  use narcotic  drugs  or  psychotropic substances illicitly;

   (iv)  Participation  in,  association or  conspiracy  to commit,  attempts  to  commit and aiding,  facilitating  and counselling   the   commission  of   any  of  the   offences established in accordance with this article."

   The  parties  to  the  Convention  further  resolved  to provide  in  addition  to conviction and punishment  for  an offence  that  the offender shall undergo measures  such  as treatment,  education, after care, rehabilitation or  social re-integration.   It was further agreed:  "The parties shall endeavour  to  ensure  that any discretionary  legal  powers under  their  domestic  law relating to the  prosecution  of persons  for  offences established in accordance  with  this article  are exercised to maximize the effectiveness of  law enforcement  measures in respect of those offences and  with due  regard  to  the need to deter the  commission  of  such offences.

   The  parties  shall  ensure that their courts  or  other competent authorities bear in mind the serious nature of the offences  enumerated in paragraph 1 of this article and  the circumstances enumerated in paragraph 5 of this article when considering  the  eventuality of early release or parole  of persons  convicted  of  such  offences." A  perusal  of  the agreement  of the Convention to which India is claimed to be a  party,  clearly and unambiguously show that  the  court’s jurisdiction  with  respect  to  the  offences  relating  to narcotic  drugs  and  psychotropic   substances  was   never intended  to  be  ousted,  taken  away  or  curtailed.   The Declaration  was made, subject to "constitutional principles and  the basic concepts of its legal system prevalent in the polity  of  a member country".  The international  Agreement emphasised  that  the courts of the member  countries  shall always bear in mind the serious nature of offences sought to be   tackled  by  the   Declaration  while  considering  the eventuality  of early release or partly of persons convicted of  such offences.  There was no International Agreement  to put  a blanket ban on the power of the court to suspend  the sentence awarded to a criminal under the Act notwithstanding the  constitutional  principles  and basic concepts  of  its legal  system.  It cannot be denied that judicial review  in our  country  is  the heart and soul of  our  constitutional scheme.    The  judiciary  is   constituted   the   ultimate interpreter of the Constitution and is assigned the delicate task  of  determining  the extent and scope  of  the  powers conferred  on  each branch of the Government, ensuring  that action  of  any  branch does not transgress its  limits.   A Constitution  Bench of this Court in S.P.  Sampath Kumar  v.

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Union  of  India [1987 (1) SCC 124] held that "it is also  a basic  principle  of  the Rule of Law which  permeates  very provision  of the Constitution and which forms its very core and  essence that the exercise of power by the executive  or any  other  authority  must not only be conditioned  by  the Constitution  but  also be in accordance with law and it  is the  judiciary which has to ensure that the law is  observed and  there is compliance with the requirements of law on the part  of the executive and other authorities.  This function is  discharged by the judiciary by exercise of the power  of judicial  review which is a most potent weapon in the  hands of  the  judiciary for maintenance of the Rule of Law.   The power  of  judicial  review  is  an  integral  part  of  our constitutional  system  and  without it, there  will  be  no government  of  laws  and  the Rule of Law  would  become  a teasing illusion and a promise of unreality".  Again in S.S. Bola & Ors.  v.  B.D.  Sardana & Ors.  [AIR 1999 SC 3127] it was  reiterated  that judicial review is the  basic  feature upon  which hinges the checks and balances blended with hind sight  in  the Constitution as people’s sovereign power  for their  protection  and establishment of  egalitarian  social order  under  the  rule of law.  The  judicial  review  was, therefore,  held to be an integral part of the  Constitution as its basic structure.  Similarly, the filing of an appeal, its  adjudication and passing of appropriate interim  orders is  concededly  a part of the legal system prevalent in  our country.

   In  Ram Charan v.  Union of India [1991(9) LCD 160], the Allahabad  High Court while dealing with the question of the@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ constitutional  validity  of Section 32A found that  as  the@@ JJJJJJJJJJJJJJ Section  leaves no discretion to the court in the matter  of deciding,  as  to  whether, after  conviction  the  sentence deserves  to  be  suspended  or not  without  providing  any guidelines regarding the early disposal of the appeal within a  specified period, it suffers from arbitrariness and  thus violative   of  mandate  of  Articles  14  and  21  of   the Constitution.   In  the  absence of right  of  suspending  a sentence,  the  right of appeal conferred upon  accused  was termed  to  be  a  right of  infructuous  appeal.   However, Gujarat  High  Court in Ishwarsingh M.  Rajput v.  State  of Gujarat  [1990 (2) Gujarat Law Reporter 1365 =1991(2) Crimes 160] while dealing with the case relating to grant of parole to  a  convict  under  the Act found that  Section  32A  was Constitutionally valid.  It was held:

   "Further,  the  classification   between  the  prisoners convicted   under  the  Narcotics   Act  and  the  prisoners convicted  under  any other law, including the Indian  Penal Code  is reasonable one, it is with specific object to  curb deterrently  habit  forming,  booming   and  paying  (beyond imagination) nefarious illegal activity in drug trafficking. Prisoners  convicted  under the Narcotics Act are  class  by themselves.   Their activities affect the entire society and may,  in  some  cases, be a death-blow to the  persons,  who become  addicts.   It  is  much more  paying  as  it  brings unimaginable  easy riches.  In this view of the matter,  the temptation  to  the prisoner is too great to resist  himself from  indulging in same type of activity during the  period, when  he is temporarily released.  In most of the cases,  it would  be  difficult  for him to leave that activity  as  it would  not  be  easy  for the prisoner to come  out  of  the clutches  of  the gang, which operates in nefarious  illegal

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activities.   Hence,  it  cannot be said  that  section  32A violates  Article 14 of the Constitution on the ground  that it  makes  unreasonable  distinction   between  a   prisoner convicted  under  the Narcotic Act and a prisoner  convicted for any other offences."

   Judged  from  any  angle, the Section in so  far  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 32A  in so far as it ousts the jurisdiction of the court  to suspend  the sentence awarded to a convict under the Act  is unconstitutional.   We  are, therefore, of the opinion  that Allahabad  High  Court  in  Ram Charan’s  case  (Supra)  has correctly interpreted the law relating to the constitutional validity  of  the Section and the judgment of  Gujarat  High Court  in Ishwarsingh M.  Rajput’s case cannot be held to be good law.

   Despite  holding that Section 32A 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,  in  so  far  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  32A  to be unconstitutional, in so  far  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.

   Holding  Section 32A as void in so far as it takes  away the right of the courts to suspend the sentence awarded to a@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ convict  under the Act, would neither entitle such  convicts@@ JJJJJJJJJJJJJJJJJJ 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.  Section 37 of the Act provides:

   "37.   Offences  to be cognizable and  non-bailable  (1) Notwithstanding  anything contained in the Code of  Criminal Procedure, 1973--

   (a)  every  offence punishable under this Act  shall  be cognizable;

   (b)  no  person accused of an offence punishable  for  a term  of  imprisonment of five years or more under this  Act shall be released on bail or on his own bond unless--

   i)  the Public Prosecutor has been given an  opportunity to oppose the application for such release, and

   ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing  that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

   (2)  The  limitations on granting of bail  specified  in clause  (b)  of  sub-section  (1) are  in  addition  to  the limitations  under  the Code of Criminal Procedure, 1973  or

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any  other  law for the time being in force, on granting  of bail.

   This  Court  in  Union of India v.  Ram  Samujh  &  Anr. [1999  (9) SCC 429] held that the jurisdiction of the  court@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to  grant bail is circumscribed by the aforesaid section  of@@ JJJJJJJJJJJJJJJJJ the  Act.  The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which convicted and he is not likely to commit any offence while on bail and during  the period of suspension of the sentence.  The Court further held:

   "The  aforesaid  section is incorporated to achieve  the object  as mentioned in the Statement of Objects and Reasons for introducing Bill No.125 of 1988 thus:

   "Even  though  the  major offences are  non-bailable  by virtue  of  the level of punishments, on technical  grounds, drug offenders were being released on bail.  In the light of certain  difficulties  faced  in   the  enforcement  of  the Narcotic  Drugs  and Psychotropic Substances Act,  1985  the need  to  amend the law to further strengthen it,  has  been felt".

                                   (emphasis supplied)

   It is to be borne in mind that the aforesaid legislative mandate  is  required  to be adhered to  and  followed.   It should  be borne in mind that in a murder case, the  accused commits  murder  of one or two persons, while those  persons who  are  dealing  in  narcotic drugs  are  instrumental  in causing  death  or in inflicting death-blow to a  number  of innocent  young  victims,  who are  vulnerable;   it  causes deleterious  effects  and  a deadly impact on  the  society; they  are hazard to the society;  even if they are  released temporarily,  in all probability, they would continue  their nefarious  activities  of  trafficking   and/or  dealing  in intoxicants  clandestinely.   Reason may be large stake  and illegal  profit  involved.   This Court,  dealing  with  the contention with regard to punishment under the NDPS Act, has succinctly  observed  about  the   adverse  effect  of  such activities  in  Durand  Dilier v.   Chief  Secretary,  Union Territory  of  Goa [1990 (1) SCC 95] as under:  (SCC  p.104, para 24)

   "24,  With  deep  concern,  we may point  out  that  the organised  activities of the underworld and the  clandestine smuggling of narcotic drugs and psychotropic substances into this  country  and  illegal trafficking in  such  drugs  and substances  have  led  to drug addiction  among  a  sizeable section  of  the  public, particularly the  adolescents  and students  of both sexes and the menance has assumed  serious and alarming proportions in the recent years.  Therefore, in order   to   effectively   control    and   eradicate   this proliferating   and  booming   devastating  menace,  causing deleterious  effects  and deadly impact on the society as  a whole,   Parliament  in  its   wisdom,  has  made  effective provisions  by  introducing this Act 81 of  1985  specifying mandatory minimum imprisonment and fine."

   8.  To check the menance of dangerous drugs flooding the market,  Parliament has provided that the person accused  of

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offences  under the NDPS Act should not be released on  bail during  trial  unless the mandatory conditions  provided  in Section 37, namely,

   i)  there are reasonable grounds for believing that  the accused is not guilty of such offence;  and

   ii) that he is not likely to commit any offence while on bail.

   are satisfied."

   Under  the circumstances the writ petitions are disposed of  by  holding  that (1) Section 32A 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.

   The  petitioner  in Writ Petition No.l69/99 shall be  at liberty to apply for parole and his prayer be considered and disposed  of in accordance with the statutory provisions, if any, Jail Manual or Government Instructions without implying Section  32A  of the Act as a bar for consideration  of  the prayer.   Similarly petitioner in Writ Petition No.243/99 is at liberty to move the High Court for suspension of sentence awarded  to  him  under  the  Act.  As  and  when  any  such application  is  filed,  the same shall be  disposed  of  in accordance  with  law  and keeping in view  the  limitations prescribed under Section 37 of the Act and the law laid down by this Court.