The State Government, which is free to pardon any prisoner convicted of even the most heinous of offences, will not have power to release a convict under the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985 held the Supreme Court in a recent judgement.
This because of a specific provision contained in the NDPS which bars the executive from suspending, remitting or commuting any sentence awarded for an offence under the Act.
This provision of the Act contained in Section 32A was challenged by two convicts suffering rigorous jail term of more than 10 years in a Punjab jail. One of the convicts, Tara Singh argued that regardless of this provision contained in the Act, the Supreme Court was free to direct the State authorities to grant remission or even suo moto decide to commute their sentence under its vast repository of constitutional powers.
The Bench of Justices Dipak Misra and Shiva Kirti Singh repulsed this demand and said, “The petitioners do not have a right to seek remission under the Code of Criminal Procedure (CrPC) because of Section 32A of the NDPS Act.” Under the Code, the State has extensive powers to remit the sentence of any prisoner either by noting his good conduct as provided in the Jail Manual or independently by exercising its authority to commute punishment under Sections 432 (power to remit or suspend sentence) or Section 433 and 433A (power to commute sentence).
State Governments time to time have exercised this power to secure the release of prisoners, either on compassionate grounds or to secure political gains. In 2014, the Tamil Nadu Government had issued orders releasing the killers of former Prime Minister Rajiv Gandhi under the remission powers of the state contained in the CrPC.
In the present case, the petitioners argued that due to Section 32A, their good conduct ceased to be a ground for remission under Chapter XIX of the New Punjab Jail Manual, 1996. The Department of Home Affairs, Government of Punjab had even issued notifications from time to time recognising that it did not have the power to remit or commute sentence under the NDPS Act.
What went against the petitioners was the fact that the validity of Section 32A of the Act was upheld by an earlier decision of the apex court in year 2000. Examining the other request of the petitioners to grant remission by the apex court’s suo moto powers available under Article 32 (power to issue writs) and Article 142 (power to do complete justice), the Bench said that even this recourse was not available since there was nothing to show that any fundamental right of convicts was violated.
However, one ray of hope was left open to the NDPS convicts as the Bench held, “The petitioners can always seek relief either under Article 71 or 161 (power of pardon granted to President and Governor) of the Constitution…the exercise of power under Articles 72 or 161 is quite different than the statutory power of remission.”