DADU TULSIDAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Constitutional validity of Section 32-A 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.

(2.) The petitioner in W.P. No. 169/99 was arrested and upon conviction under S. 21 of the Act sentenced to undergo imprisonment for 10 years. He claims to have already undergone sentence for more than 7 years. He could not claim parole presumably under the impression that S. 32-A 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.

(3.) Petitioner in W.P. 243 of 1999, after trial was convicted under the Act and the bail application filed by him along with 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.