LexKRISHNAN & ORS. versus STATE OF HARYANA & ORS.
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A B c [2013] 3 S.C.R. 254 KRISHNAN & ORS. v. STATE OF HARYANA & ORS. (Criminal Appeal No. 973 of 2008) MAY 7, 2013 [DR. B.S. CHAUHAN AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.) Narcotic Drugs and Psychotropic Substances Act, 1985: s.32-A - Sentence awarded under the Act, not to be suspended, nor any remission/commutation to be ordered - Questions (i) Whether s.32-A is violative of Arts. 72 and 161 .of Constitution of India; and (ii) whether s.32-A NDPS Act is 0 violative of Arts 14 and 21 of the Constitution of India, inasmuch as the same abrogates the rights of a convict under the Act to be granted remission/commutation, etc. - Refe"ed to larger Bench - Constitution of India, 1950 - Arts. 14, 21, 72 and 161. E The instant appeal arose out of the decision of the High Court upholding the validity of the letter dated 28.6.2006 issued by the Deputy Inspector General of Prisons, Haryana giving effect to provisions of s.32-A of the Narcotic Drugs and Psychotropic Substances Act, F 1985. The High Court held that the appellants were not entitled to relief sought for by them. Referring the matter to larger Bench, the Court HELD: 1.1. The validity of s.32-A, so far as the G competence of the court is concerned, was partly struck down. As to the question of imposing complete embargo on remission and commutation in the context of Arts 72 and 161 of the Constitution of India, the issue was not conclusively decided by the court. More so, in paragraph H 254 KRISHNAN & ORS. v. STATE OF HARYANA & ORS. 255 15, the reference has been made that such exclusion A cannot be held as unconstitutional on account of it not being absolute, in view of the constitutional powers conferred upon the executive. Articles 72 and 161 of the Constitution empower the President of India and the Governor of a State to grant pardons, re'prieves, respites B 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. [para 5) [262-E-G] C Dadu @ Tulsidas V, State of Maharashtra, (2000) 8 SCC 437 - referred to. 1.2. In fact, Art. 72 and 161 of the Constitution provide for residuary sovereign power, thus, there could be D nothing to debar the authorities concerned to exercise such power even after rejection of one clemency petition and even in the changed circumstances. [para 7) [263-E] Krishta Goud and J. Bhoomaiah v. State of Andhra E Pradesh & Ors., (1976) 1 SCC 157; State of Haryana & Ors. v. Jagdish 2010 (3) SCR 716 =AIR 2010 SC 1690; State of Uttar Pradesh v. Sanjay Kumar 2012 (7) SCR 359 = (2012) 8 sec 537- referred to 1.3. This Court has always clarified that the F punishment of a fixed term of imprisonment so awarded would he subject to any order passed in exercise of the clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions under Art. 72 or Art. 161 are G granted in exercise of prerogative power. There is no scope of Judicial review of such orders except on very limited grounds. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administratior:t of justice H 256 SUPREME COURT REPORTS [2013] 3 S.C.R. A cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, directions of the court specifying a minimum term of incarceration do not interfere with the sovereign power B of the State. Such directions have been passed by courts considering the gravity of the offences directing that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under Jail Manual, etc. or even u/s 433-A c Cr.P.C. [para 9) [262-C-F] Epuru Sudhakar & Anr. v. Government of A.P. & Ors., 2006 (7) Suppl. SCR 81 = (2006) 8 SCC 161; Union of India & Ors. v. Ind-Swift Laboratories Limited, 2011 (2) SCR 1087 = (2011) 4 SCC 635; Sardar Syedna Taher Saifuddin Saheb D v. State of Bombay 1962 Suppl. SCR 496 =AIR 1962 SC 853- referred to 1.4. Keeping in view the decisions of this Court and the submissions made in the instant appeal, the appeal E raises the following substantial questions of law: (i) "Whether s.32A NDPS Act is violative of Arts.
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