LexDADU @ TULSIDAS versus STATE OF MAHARASHTRA
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- DADU @ TULSIDAS A v. ST A TE OF MAHARASHTRA ... OCTOBER 12, 2000 [K.T. THOMAS, R.P. SETHI AND S.N. VARIAVA, JJ.] B Narcotic Drugs and Psychotropic Substances Act, 1985 S.32A-Constitutional validity of-NDPS Act-Conviction under- c Sentence-Suspension of-Provision for ouster of jurisdiction of court to suspend sentence-Held, unconstitutional-However, the provision taking away the power of Execut;ve to suspend, remit or commute sentenpe, held, valid-Power of court to suspend sentence must be exercised within parameters prescribed under S.37-Convicts not entitled to suspension of sentence as a matter of right-Criminal Procedure Code, 1973-Ss. 389, 432 D and 433-Constitution of India, 1950-Articles 14 and 21. Parole-Grant-Effect-Held, does not amount to suspension, remission or commutation of sentence-Thus, authorities entitled to grant parole to a person convicted under the Act. Constitution of India, 1950-Articles 226 and 32-Judicial Review- E Exercise of-Legislative restrictions-Imposition-Permissibility of-Held, Judicial Review being heart and soul of the Constitutional scheme, cannot be encroached upon by legislature. Words & Phrases F "Parole"-Meaning of In these writ petitions, the Constitutional validity of Section 32A of the Narcotic Drugs and Psychotoropic Substances Act, 1985 prohibiting suspension, remission or commutation of sentence awarded under the Act has G been challenged. On behalf of appellant-convicts it was contended that Section 32A of the Act creating unreasonable distinction between the prisoners convicted under the Act and those convicted for offences under various other statutes was -. arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution. H 703 A B 704 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R. Partly allowing the writ petitions, the Court HELD : 1.1. Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 taking away the jurisdiction of the courts under Section 389 of the Criminal Procedure Code, 1973 to suspend the sentences awarded to a convict under the Act is unconstitutional. [721-G] Ram Charan v. Union of India, (1991) 9 LCD 160, approved. Jshwarsingh M Rajput v. State of Gujarat, (1990) 2 Gujarat Law Reporter (1365) = (1991) 2 Crimes 160, overruled. C 1.2. 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 D intermediate 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. E [716-B, C, D] 1.3. Not providing atleast one right of appeal, would negate the due process of law in the matter of dispensation of criminal justice. 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 F for early disposal of the appeal. Thus, the appellate powers of the court cannot be denuded by Executive or judicial process. [716-E-F) Bhagwan Rama Shinde Gosai & Ors. v. State of Gujarat, AIR (1999) SC 1859, relied on. G Denny v. Mattoom, 2 Allen, 361, referred to. - Thomas M Cooley: "Treatise on the Constitutional Limitations" 8th -~ Edition, referred to. 1.4. Judicial review is the heart and soul of the constitutional scheme. H The judiciary is constituted as the ultimate interpreter of the Constitution - - DADU v. STATE OF MAHARASHTRA 705 and is assigned the delicate task of determining the extent and scope of the A powers conferred on each branch of the Government, ensuring that action of any branch does not transgress its limits. The judicial review was, 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 the country. [720-
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