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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 of  

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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 437

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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  the

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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 is

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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 334

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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 same

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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.