JUDGMENT
M.B. Shah, J.
1. In these petitions, the question, which requires determination, is whether a person convicted under the Provisions of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “the Narcotics Act”) can be released either on parole or furlough by the concerned authority under Parole and Furlough Rules after addition of Section 32A in the Act? Section 32A reads as under:
32A. No suspension, remission or commutation in any sentence awarded under this Act:
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted.
This Section came into force with effect from 29th May, 1989. It is mandate of the aforesaid section that notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any law for the time being in force no sentence under this Act shall be suspended, remitted or commuted, otherwise that is provided under Section 26 or Section 33 of the Act. The language of Section 32A is clear and admits of no ambiguity. Therefore, once a person is convicted under the Narcotics Act, his sentence cannot be suspended or remitted.
2. By granting parole or furlough, the prisoner is released from the jail for a short time. It is granted for various reasons, such as, to enable the prisoner to return to the outside would, to enable continuity with his family life, and to deal with family matters, etc. If the prisoner is released on parole, his sentence is suspended for the time being for the period for which he is relased on parole. If he is relased on furlough, his sentence is suspended and remitted. However, grant of parole or furlough is a concession given to the prisoner under the system known as “Parole and Furlough Rules”, which are framed under the provisions of the Prisons Act, 1894. The purpose and object of granting parole or furlough is, to some extent, considered by the Full Bench of this Court in the case of Bikhabhai v. State
The Parole and Furlough Rules are part of the penal and prison reform with a view to humanise the prison system. These rules enable the prisoner to obtain his release and to return to the outside world for a short prescribed period. The objects of such a release of prisoner can be read from para 101 of the report submitted by the All India Jail Manual Committee as also the objects mentioned in the Model Prison Manual. These objects are:
(i) to enable the inmate to maintain continuity with his family life and deal with family matters.
(ii) to save the inmate from the…of…prison life.
(iii) to enable the inmate to maintain constructive hope and active interests in life.
14. In the Statement of Objects & Reasons for Bombay (Prison Amendment) Act No. 27 of 1953, the Jail Reforms Committee had recommended and the Government accepted the recommendation that:
There should be the system of release of prisoners on furlough under which well behaved prisoners of certain categories should, as a matter of right have a spell of freedom occasionally after they undergo a specified period of imprisonment, so that they may maintain contact with their near relatives and friends and may not feel uprooted from society. Government accepted these recommendations and also decided that the furlough period should count towards the prisoner’s sentence.
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The experience has shown that the system has worked satisfactorily. The Prisons Act, 1894 does not specifically provide for the grant of furlough and the remission of sentence consequent upon it. In order to place the system on a permanent footing and to enable the Government to delegate its powers to the Inspector General of Prisons, it is necessary that the Prisons Act, 1894 should be amended in its application to the State of Bombay.
3. In furtherance of the aforesaid objects, necessary amendments were made in the Prisons Act, 1894. Bombay Act 27 of 1951 and Bombay Act 23 of 1959 substituted Clause (5) of Section 3 of the Prisons Act, 1894 as under:
3. Definitions : In this Act:
xxx xxx xxx (5) 'remission system' means the system of regulating the award of marks to, and the consequent shortening of sentences, of prisoners in Jail in accordance with the rules for the time being in force; (5A) 'furlough system' means the system of releasing prisoners in Jail on furlough in accordance with the rules for the time being in force; (Bombay Act 27 of 1951). (5B) 'parole system' means the system of releasing prisoners in Jail on parole, by suspension of their sentences in accordance with the rules for the time being in force; (Bombay Act 23 of 1959) Bombay Act 23 of 1959 further substituted Clause (5) of Section 59 of the Prisons Act, 1894, as under: 59. Power to make rules : The State Government may make rules consistent with this Act: xxx xxx xxx (5) for the award of marks, the suspension, or remission and consequent shortening of sentences, and the grant of release on parole or furlough and determining the conditions on which and the authority by which the sentence may be suspended or remitted and the prisoners may be released on parole or furlough.
The Bombay Jail Manual, inter alia, provides types of remission and how it is to be granted. It provides for ordinary remission, annual good conduct remission, special remission, blood donation remission, conservancy work remission, physical training remission and sports remission. Rule 1444 provides that if a prisoner is convicted of an offence committed after admission to jail, under Sections 147, 148, 152, 224, 302, 304, 304-A, 306, 307, 308, 323, 325, 326, 327, 332, 333, 352, 353 and 377 of the Indian Penal Code, or of an assault committed after admission to jail on a jail guard or other officer, all the ordinary and special remission of whatever kind earned by him under these Rules upto the date of said conviction may be cancelled with the sanction of the Inspector General. Review or suspension of sentence is Chapter 42 Part-II, and it begins from Rule 1487. For our purpose, important Rule is Rule 1500, which would provide the system how and to whom and to what extent furlough is to be granted to the prisoner. If specifically provides that “habitual criminals and prisoners convicted of offences relating to robbery, dacoity under Sections 392 to 402 of I.P.C., or prisoners convicted under Prohibition Act either single or together with any offence or such convicts, whose presence is considered dangerous or prejudicial to public peace and tranquility by the District Magistrate concerned or the Commissioner of Police, Greater Bombay, as the case may be, or prisoners whose conduct in jail is in the opinion of the Superintendent not satisfactory shall not be eligible for release on furlough”.
Rules 1509 and 1510 read as under:
1509 The furlough period shall in each case be counted as a remission of sentence;
Provided that where any furlough period has been extended under Rule 1509 the period of extension shall not be counted as a remission of sentence.
1510 A prisoner may be released on parole, for such a period as Government may order in cases of serious illness or death of any member of the prisoner’s family or his nearest relative or for any other sufficient cause. The period spent under parole will not count as part of sentence.
4. Same is provided in the Prisons (Bombay Furlough and Parole) Rules, 1959. Rule 16 provides that “Furlough period shall be counted as remission of sentence”. Rule 20 provides that “period spent on parole shall not count as remission of sentence”. Rule 29 provides for “Form of Order of release on furlough or parole-every order of release on furlough or parole shall be made in Form “E”. Form “E”, inter alia, provides that the period when the prisoner released on parole his sentence is suspended.
5. From the definitions of the words ‘parole’ and ‘furlough’ given in the Prisons Act and the Rules, it is abundantly clear that once a prisoner is released on furlough, his sentence is suspended for the time being and is remitted. When the prisoner is released on parole, his sentence is suspended for the time being, but no remission is given for that period.
6. Once it is held that by releasing the prisoner on furlough his sentence is suspended and is remitted and by releasing the prisoner on parole his sentence is suspended for the time being, then there is a specific bar or prohibition under Section 32A of the Narcotics Act to the suspension or remission of the sentence awarded under the Narcotics Act. Hence, the prisoners convicted for the offence under the Narcotics Act cannot be released on parole or furlough.
7. This Section is added with a definite object by the Parliament after due deliberation. The Parliament considered the shocking escalation of serious crime of traffic in illicit drug and its serious adverse effects on the society. It has not only provided deterrent punishment, but has also provided that no sentence awarded under the Act shall be suspended, remitted or commuted. This will be clear from the Statement of Objects and Reasons of Act 2 of 1989. The Statement of Objects and Reasons for amendment of the Narcotics Act are as under:
STATEMENT OF OBJECTS AND REASONS
In recent years, India has been facing a problem of transit traffic in illicit drugs. The spill-over from such traffic has caused problems of abuse and addiction. The Narcotic Drugs and Psychotropic Substances Act, 1985, provides deferent punishments for drug trafficking offences. Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt.
2. A Cabinet Sub-Committee which was constituted for combating drug traffic and preventing drug abuse, also made a number of recommendations for strengthening the existing law. In the light of the recommendations of the Cabinet Sub-Committee and the working of the Narcotic Drugs and Psychotropic Substances Act, in the last three years, it is proposed to amend the said Act. These amendments, inter alia, provide for the following:
(i) to constitute a National Fund for Control of Drugs Abuse to meet the expenditure incurred in connection with the measures for combating illicit traffic and preventing drug abuse;
(ii) to bring certain controlled substances which are used for manufacture of Narcotic Drugs and Psychotropic Substances under the ambit of Narcotic Drugs and Psychotropic Substances Act and to provide deterrent punishment for violation thereof;
(iii) to provide that no sentence awarded under the Act shall be suspended, remitted or commuted;
(iv) to provide for pre-trial disposal of seized drugs;
(v) to provide death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs;
(vi) to provide for forfeiture of property and a detailed procedure relating to the same, and
(vii) to provide that the offences shall be cognizable and non-bailable.
3. The Bill seeks to achieve the above objectives.
From the Statement of Objects and Reasons for introducing the amendment in the Narcotics Act, it is abundantly clear that Section 32A and other Sections are added, inter alia, to provide that the drug offenders may not be released on bail, punishment to the offenders is deterrent and to make provision that no sentence awarded under the Act shall be suspended, remitted, or commuted. This object of Parliament will be frustrated if the prisoners convicted under the Narcotics Act are released on parole or furlough.
8. In view of the aforesaid legislative mandate, learned Counsel Mr. Mehta, appearing in two matters, made an application for amending the petitions so as to challenge the vires of Section 32A of the Narcotics Act on the ground that it violates Articles 14 and 21 of the Constitution and that it seeks to amend the Constitutional provisions of Article 72 and Article 161 of the Constitution, and therefore, it is void. At the time of hearing of this matter, he submitted that Section 32A discriminations between a prisoner, who is convicted under the Narcotics Act, and prisoners, who are convicted under any other law, because prisoners convicted under any other law are entitled to have parole or furlough, while prisoners convicted under the Narcotics Act, and prisoners, who are convicted under any other law, because prisoners convicted under any other law are entitled to have parole or furlough, while prisoners convicted under the Narcotics Act are not to be released on parole or furlough in view of Section 32A. He further submitted that it is in violation of Article 21 of the Constitution, as it is inhumane treatment to the prisoners convicted under the Narcotics Act. Lastly, he submitted that the mandatory direction given under Section 32A should be read down by construing the word ‘shall’ as ‘may’ so that, in appropriate case, an authority can release the prisoner convicted under the Narcotics Act for few days on parole or furlough.
9. As against this, Miss Doshit, learned Additional Public Prosecutor, submitted that it cannot be said that classification between the prisoners, who are convicted under the Narcotics Act and the prisoners, who are convicted under the provisions of I. P. C., Customs Act or any other law for the time being in force, is in any way unreasonable. Classification is on the nature of the offence committed by the prisoners and with a specific object to curb illicit traffic and/or preventing drug abuse. She submitted that parole and furlough system is introduced for the benefit of the prisoners so that they may maintain contact with their near relatives and friends and may not be uprooted from the society. But it does not give an absolute right to the prisoner to be released on parole or furlough. If the Legislature provides that the said benefit shall not be given to the prisoners convicted for a particular type of offences, then it cannot be said that the said restriction is illegal or ultra vires Article 14 or Article 21 of the Constitution of India.
10. Mr. Mehta, learned Counsel, on behalf of the petitioners, submitted that by not releasing the prisoners, who are convicted for the offences under the Narcotics Act on parole or furlough, it would mean that the right to live as a human being is violated. For this purpose, he placed reliance on the decision of the Supreme Court in the case of Sunil Batra v. Delhi Administration He referred to various paragraphs of the judgment and submitted that if any inhumane treatment is given to the prisoner, this Court should issue writ and compel the concerned authority to act in a reasonable manner. Mr. Mehta relied mainly on the following observations made by the Supreme Court in paragraphs 31, 51 and 61:
No iron curtain can be drawn between the prisoner and the Constitution. It is, therefore, the Court’s concern, implicit in the power to deprive the sentence of his personal liberty, to ensure that no more and no less is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to but advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such adulteration or dilution of Court sentences by executive palliation, if unwarranted by law.
xxx To give effect to the sentence means that it is illegal to exceed it and so it follows that a prison official who goes beyond mere imprisonment or deprivation of locomotion and assaults or otherwise compels the doing of things not covered by the sentence acts in violation of Article 19 Punishments or rigorous imprisonment oblige the inmates to do hard labour, not harsh labour and so a vindictive Officer victimising a prisoner by forcing on him particularly harsh and degrading jobs, violates the law’s mandate. For example a prisoner, if forced to carry night soil, may seek a habeas writ. “Hard labour” in Section 53 has to receive a meaning. A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to break stones for nine hours a day. The prisoner cannot demand soft jobs but may reasonably be assigned congenial jobs. Sense and sympathy are not enemies of penal asylums.
61. The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it. Community agencies should, therefore, be entitled wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners. There should be in connection with every institution social workers charged with the duty of maintaining and improving all desirable relations of a prisoner with his family and with valuable social agencies. Steps should be taken to safeguard, to the minimum extent compatible with the law and the sentence the rights relating to Civil interests, social security rights and other social benefits of prisoners.
In our view, this judgment nowhere states that prisoners convicted of gravest offence, who are a menace to the social order, should be let loose in the society by suspending the sentence. It should not be lost that in murder case, the accused commits murder of one or two persons, while those persons, who are convicted under the Narcotics Act, are causing the death or are inflicting death blow to a number of innocent young victims, who are vulnerable, and are causing deleterious effects and deadly impact on the society. As such, they are a hazard to the society. Even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. The aforesaid judgment, upon which heavy reliance is placed by the learned Advocate to urge that inhumane treatment should not be given to the prisoner, nowhere lays down that by not releasing the prisoner on parole or furlough it would amount to inhumane treatment, or it does not law down that in spite of the prisoner’s nefarious activities, for which the prisoner is convicted after prolonged trial, he should be released on parole or furlough. Before anti-social elements create havoc, if Legislature, with an object to curb it, incorporates Section 32A, it cannot be said that it is in violation of Article 21. Personal liberty of persons, who are convicted under the Narcotics Act, is curtailed by due process of law. If a person commits a criminal offence and punishment has been given to him by a procedure established by law, which is free and fair, where the accused has been fully heard, no question of violation of Article 21 arises by implementing the judgment and conviction order passed by the Court. To prisoners convicted of other offences, under the parole and furlough system, some benefits are given, but Parliament, in its wisdom, thought that such benefits should not be given to the prisoners convicted under the Narcotics Act. That cannot be said to be in any way inhumane.
11. Mr. Mehta, learned Advocate appearing for the petitioners, submitted that prisons have a drastic effect on the family life of the prisoner, and it would be inhumane not to release prisoners convicted for the offence punishable under the Narcotics Drugs and Psychotropic Substances Act, 1985 on parole or furlough. However, he failed to point out any Article even in Human Rights Proclamation by the General Assembly of United Nations to substantiate his contention. He fairly pointed out that even in the Modern Legal Studies of Human Rights and Europe, Second Edition, by Ralph Beddard, it has been stated that prisons have a drastic effect, of course, on family life, but since the prisoner in usually there following his own misdemeanours, there seems little claim that the State is responsible for violation of Article 8. The relevant passage is as under:
The welfare of the child is also of prime importance in justifying restrictions on children visiting one of their parents in goal. Prisons have a drastic effect, of course, on family life but since the prisoner is usually there following his own misdemeanours there seems little claim that the State is responsible for violation of Article 8. The question always arises, however, of how far a prisoner’s freedom should be restricted by a prison sentence. In 1968 the Commission noted that a majority of States parties to the Convention had no system whereby prisoners had the opportunity of continuing married life, and only in two States were there provisions for home leave and conjugal visits.
Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms stated in Universal Declaration is as under:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Considering the aforesaid position, it cannot be said, by any stretch of imagination, that not releasing the prisoner convicted under the Narcotics Act on parole or furlough would be in any way inhumane. It would be necessary and the Parliament had thought it so in the interest of democratic society for the prevention of disorder and for the protection of health of numerous adolescents of this country.
12. It should also be kept in mind that prisoners have no absolute right of being released on parole or furlough. It is the privilege given to them depending upon facts and circumstances of each case. The Prison Rules, as stated above, specifically provide that certain prisoners convicted for the offences punishable under Section 394 to 398 and others shall not be released on furlough. Releasing a prisoner on parole is a discretion of competent authority to be exercised on the basis of certain guidelines.
13. Further, the contentions raised by the learned Advocate Mr. Mehta are dealt with by the Supreme Court in the case of Maru Ram v. Union of India In that case, validity of Section 433A of the Criminal Procedure Code, which was inserted in 1978 was challenged. Section 433A reads as under:
433A. Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments, provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
Similar contentions were raised before Court, and the Court had negatived the same.
14. One of the contentions raised in the aforesaid case was to the effect that it was the duty of the Court to uphold the human rights and the prisoners’ reformity freedom should not be curtailed. Dealing with this contention, the Court observed as under:
xxx In the province of interpretation, industry and dexterity of counsel can support any meaning, what with lexical plurality, case-law prodigality and profusion of canons to support any provision. We had better base ourselves on the plain purpose and obvious sense of the statute which is a sure semantic navigatory before turning to erudite alternatives. Oliver Wendel Holmes has wisely said, “it is sometimes more important to emphasise the obvious than elucidate the obscure”. Another sage counsel is Frankfurter’s threefold advise : H. Friendly, Benchmarks 202(1967) : (1) Read the statute; (2) read the statute; (3) read the statute.
If we read Section 32A of the Narcotics Act, there is no escape, as it is clear and unambiguous. It specifically prohibits grant of remission or suspension of sentence. The Court further held that Sections 432, 433 and 433A make it clear that while the Code does confer wide powers of remission and commutation of sentence it emphatically intends to carve out an extreme category from the broad generosity of such executive power. Section 433A directs that commutation in cases covered by Section 433 shall not be less than actual duration of imprisonment below 14 years. Sentencing is judicial function but the execution of sentence after the Court’s pronouncements is ordinarily a matter for the Executive under the Criminal Procedure Code. No release by reduction or remission of sentence is possible under the corpus juris as it stands in any other way except under provisions of Sections 432 and 433A. Court relied upon the decision of the Supreme Court in the case of Rabha and relied upon the following observation in that case:
A reprieve is a temporary suspension of the punishment fixed by law. A pardon is the remission of such imprisonment. Both are the exercise of Executive functions and should be distinguished from the exercise of judicial power over sentences. ‘The judicial power and the executive power’ over sentences are readily distinguishable’, observed Justice Sutherland. To render a judgment is judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter is qua judgment.
Though, therefore, 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 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.
The Court further relied upon the following observations of the Supreme Court in Godse’s case
Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life time in prison. The rules framed under the Prisons Act enable such a prisoner to earn remissions ordinary, special and State and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predict the time of his death. That is why the rules provides for a procedure to enable the appropriate Government to remit the sentence under Section 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period remissions earned. The question of remission is exclusive within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.
The Court thereafter considered whether Section 433A suffers from extreme vices of arbitrariness or irrationality. This aspect was considered by the Supreme Court after observing that:
We must remember that Parliament as legislative instrumentality, with the representatives of the people contributing their wisdom to its decisions, has title to an initial presumption of constitutionality. Unless one reaches far beyond unwisdom to absurdity, colourability and the like, the Court must keep its hands off.
The Court further relied upon the following paragraph from the decision in the case of Charles Sobraj
It is now well settled, as a stream of ruling of Courts proves, that deterrence both specific and general, rehabilitation and institutional security are vital considerations. Compassion wherever possible and cruelty only where inevitable, is the art of correctional confinement. When prison policy advances such a valid goal, the Court will not intervene officiously.
In paragraph 46, the Court held as under:
Basic to the submissions of counsel for the petitioners is the humane assumption that the object of sentencing is not deterrent torture simplicitor but mainly the rehabilitation of the prisoner. Human dignity, emphasised in the preamble, compassion, implicit in the prescription of fair procedure in Article 21 and the irrationality or arbitrary incarceratory demand for a reformatory component in jail regimen with the status of a constitutional requirement. We need not prolong the judgment by substantiation of this proposition because the Solicitor General, with sweet reasonableness and due regard to the precedents of this Court, has not disputed that reform of the prisoner is one of the major purposes of punishment.
The Court dealt with the argument that “14 Years in prison is an inordinate spell which is not only an unrewarding torment but a negation of reformation indeed, the promotion of embittered hostility to society and hardening of brutality counter-productive of hopeful humanisation”. The Court held that:
Even though reformation of prisoner was a necessary meansure of minimum incarceration of 14 years for the gravest class of crimes like murder cannot be considered shocking, having regard to the escalation of horrendous crime in the country. The time has not perhaps arrived to exclude deterrence and even public denunciation altogether. Secondly, even for correctional thereby, a long “hospitalisation” in prison may sometimes be needed.
Thereafter, the Court held that:
Personal opinions apart, a very long term for a murderer in prison cannot be castigated as so outrageous as to be utterly arbitrary and violative of rational classification between lifers and lifers and as so blatantly barbarous as to be irrational enough to be struck down as ultra vires. Even the submission that no penal alibi justifies a prisoner being kept walled of from the good earth, if by his conduct, attainments and proven normalisation, he has become fit to be a free citizen, cannot spell unconstitutionality.
15. The Supreme Court has also negatived the contention that Section 433A was invalid on the ground that it was indirectly violative of Articles 72 and 161 of the Constitution. Mr. Mehta, learned Counsel for the petitioners, has not pressed the said contention in view of the aforesaid decision, and therefore, it is not necessary to decide it further. In concluding paragraph, the Supreme Court formulated its conclusion. The relevant paragraphs are under:
We conclude by formulating our findings:
(1) We repulse all the thrusts on the vires of Section 433A. May be, penologically the prolonged term prescribed by the section is supererogative. If we had our druthers we would have negatived the need for a fourteen year gestation for reformation. But ours is to construe, not construct, to decide, not to make a code.
(2) We affirm the current supremacy of Section 433A over the Remission Rules and short-sentencing statutes made by various States.
xxx xxx xxx (4) We hold that Section 432 and Section 433 are not manifestation of Articles 72 & 161 of the Constitution but a separate, though similar, power and Section 433A by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the Constitutional power to pardon, commute and the like. (5) We negate the plea that Section 433A contravenes Article 20(1) of the Constitution. (6) We follow Godse's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by the Government. XXX XXX XXX (14) Section 433A does not forbid parole or other release within 14 years span. So to interpret the section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty. In the concurring judgment, Fazal Ali, J., has observed in paragraphs 83, 85 and 88 as under:
83. The dominant purpose and the avowed object of the legislature in introducing Section 433A in the Code of Criminal Procedure unmistakably seems to be to secure a deterrent punishment for heinous offences committed in a dastardly, brutal or cruel fashion or offences committed against the defence or security of the country. It is true that there appears to be a modern trend of giving punishment a colour of reformation of the Criminal rather than his confinement in jail which is an ideal objective. At the same time, it cannot be gainsaid that such an objective cannot be achieved without mustering the necessary facilities, the requisite education and the appropriate climate which must be created to foster a sense of repentence and penitence in a criminal so that he may undergo such a mental or psychological revolution that he realises the consequences of playing human lives. In the world of today and particularly in our country, this ideal is yet to be achieved, and in fact, with all our efforts it will take us a longtime to reach this sacred goal.
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85. The question, therefore, is should the country take the risk of innocent lives being lost at the hands of criminals committing heinous crimes in the holy hope or wishful thinking that one day or the other, a criminal however dangerous or callous he may be, will reform himself. Valmikis are not born everyday and to expect that our present generation with the prevailing social and economic environment would produce Valmikis day after day is to hope for the impossible.
xxx xxx xxx 88. Crime has rightly been described as an act of warfare against the community touching new depths of lawlessness. The object of imposing deterrent sentences is three fold: (1) to protect the community against callous criminals for a long time. (2) to administer as clearly as possible to others tempted to follow them into lawlessness on a war scale if they are brought to and convicted, deterrent punishment will follow, and
(3) to deter criminals who are forced to undergo long term imprisonment from repeating their criminal acts in future. Even from the point of view of reformative form of punishment “prolonged and indefinite detention is justified not only in there name of prevention but cure. The offends has been regarded in one sense as a patient to be discharged only when he responds to the treatment and can be regarded as safe”. “The growth of crime” by Sir Leon Radzinowics) for the society.
With regard to deterrent punishment, the Court observed in paragraphs 94 and 97 as under:
94. While I agree that the deterrent form of punishment may not be a most suitable or ideal form of punishment yet the fact remains that the deterrent punishment prevents occurrence of offences by:
(i) making it impossible or difficult for an offender to break the law again.
(ii) by deterring not only the offenders but also others from committing offences, and
(iii) punishment or for that matter a punishment in the form of a long term imprisonment may be a means to changing a person’s character or personality to that out of some motivation or reasons of a personal or general nature, the offender might obey the law. The Honderich in his book “punishment” while dealing with the deterrent form of punishment observes as follows:
It is also to be noticed that the conditions have other consequences as well. Penalties must be sufficiently severe to deter effectively.
Bentham has also pointed out that a penalty may be justified when the distress it causes to the offender and others is not greater than the distress that will result if he and others undeterred, offended in the future. Ted Honderich after highlighting various aspects of the deterrent form of punishment concludes as follows:
There are classes of offenders who are not deterred by the prospect of punishment. It cannot be acceptable that a society should attempt to prevent all offences by punishment alone in anticipation of the discussion to come of compromise theories of punishment, we can say that punishment may be justified by being both economically deterrent and also deserved.
xxx xxx xxx
97. In most parts of our country, particularly, in the north, cases are not uncommon where even a person sentenced to imprisonment for life and having come back after earning a number of remissions has committed repeated offences. The mere fact that a long term sentence or for that matter a sentence of death has not produced useful results cannot support the argument either for abolition of death sentence or for reducing the sentence of life imprisonment from 14 years to something less. The question is not what has happened, because of the provisions of the penal code, but what would have happened if deterrent punishments were not given. In the present distressed and disturbed atmosphere, we feel that if deterrent punishment is not resorted to, there will be complete choas in the entire country and criminals will be loose endangering the lives of thousands of innocent people of our country. In spite of all the resources at its hands, it will be difficult for the State to protect or guarantee the life and liberty of all the citizens, if criminal are let loose and deterrent punishment is either abolished or mitigated. Secondly while reformation of criminal is only one side of the picture, rehabilitation of victims and granting relief from the tortures and suffering which are caused to them as a result of the offences committed by the criminals is a factor which seems to have been completely overlooked while defending the cause of criminals for abolishing deterrent sentences. Where one person commits three murders it is illogical to plead for the criminal and to argue that his life should be spared, without at all considering what has happened to the victims and their family. A person who has deprived another person completely of his liberty for ever and has endangered the liberty of his family has no right to ask the Court to uphold his liberty is not a considered concept, nor does Article 21 of the Constitution contemplate such a concept: If a person commits a criminal offence and punishment has been given to him by a procedure established by law which is free and fair and where the accused has been fully heard no question of violation of Article 21 arises when the question of punishment is being considered.
16. From the aforesaid judgment, it is clear that the contentions, which are similar to the contentions raised by the learned Advocate Mr. Mehta, are dealt with and are negatived by the Supreme Court. There is no substance in the contention that Section 32A is violative of Articles 72 and 161 of the Constitution. Articles 72 and 161 operate altogether in a different field. The Constitutional prerogative under Articles 72 and 161 of the Constitution is altogether different. As observed by the Supreme Court, it cannot be equated with a statutory provision,. The Supreme Court has specifically observed that superficially viewed, the two powers, one Constitutional and the other statutory, are co-extensive. But, two things may be similar, but not the same. The Constitutional power is un-touchable and unapproachable. It cannot be amended by introduction of Section 32A.
16.1. It also cannot be said that by not releasing the prisoner on parole or furlough, it would amount to inhumane treatment. In any case, whether it is a humane treatment or inhumane treatment is a relative concept, which varies from society to society. The Parliament, after due deliberation, has arrived at the negative conclusion. If the will of the people, as enacted in the law, is to prevail then it would not be open to this Court to take a contrary view. The Parliament does not want that the persons convicted under the Narcotics Act should be let loose in the society in the present disturbed and distressed atmosphere. Hence, the contention of the learned Advocate Mr. Mehta, that Section 32A is violative of Article 14 and/or Article 21 on the ground that it amounts to inhumane treatment to the prisoners convicted under the Narcotics Act, cannot be accepted.
16.2. Further, the classification between the prisoners convicted under the Narcotics Act and the prisoners convicted under any other law, including the Indian Penal Code is a reasonable one. It is with specific object to curb deferently habit forming, booming and paying (beyond imagination) nefarious illegal activity in drug trafficking. Prisoners convicted under the Narcotics Act are class by themselves. Their activities affect the entire society and may, in some cases, be a death-blow to the persons, who become addicts. It is much more paying as it brings unimaginable easy riches. In this view of the matter, the temptation to the prisoner is too great to resist himself from indulging is same type of activity during the period, when he is temporarily released. In most of the cases, it would be difficult for him to leave that activity as it would not be easy for the prisoner to come out of the clutches of the gang, which operates in nefarious illegal activities. Hence, it cannot be said that Section 32A violates Article 14 of the Constitution on the ground that it makes unreasonable distinction between a prisoner convicted under the Narcotics Act and a prisoner convicted for any other offences.
16.3 Considering the objects and reasons and the aforesaid discussion, it would be further difficult to accept the contention of the learned Advocate Mr. Mehta that the word ‘shall’ used in Section 32A should be read as ‘may’ so that, in some cases, it may be open to the authority to release the person convicted under the Narcotics Act on parole or furlough.
17. Further, validity of Rule 4(1) of the Furlough and Parole Rules, 1959, which provides that prisoners undergoing sentence for some of the offences mentioned therein shall not be released on furlough was challenged before this Court on the ground that it violates Article 14 as it discriminates between two sets of prisoners undergoing sentence. A Division Bench of this Court, in the case of Juvansingh Lakhubhai Jadeja v. State of Gujarat XIV GLR 104, has negatived the said contention. The Court has held that classification between prisoners on the basis of offences committed by them is reasonable and it is made with an object of safeguarding legitimate rights of the citizens in regard to their security in the matter or life and liberty. The Court has specifically observed that while meting out humane treatment to the convicts, care is required to be taken to ensure that kindness to the convicts does not result in cruelty to the society. Consideration of sympathy cannot be permitted to overshadow the consideration regarding security of the society. The Court has also negatived the contention that in the case of more serious crime, like murder, prisoner is released, and offenders of robbery and dacoity are not released on furlough, and therefore, it is violative of Article 14 of the Constitution. It would be worthwhile to quote the relevant discussion, which is as under:
xxx 9. Sections 392 to 402 occur in Chapter XVII of the Indian Penal Code and relate to offences of robbery and dacoity. The question is: is there any rational basis for selecting this class of offences for being in the list of the offences for which convicts should not be enlarged on furlough? Now, in robbery an element of violence is present along with theft or extortion. Violence is either actually used or attempted to be used either for carrying away of the property or for making the victim part with the property. And when five or more persons conjointly commit or attempt to commit robbery, the offence falls within the description of decoity. It is obvious that in dacoity five or more persons come together with the avowed object of obtaining property unlawful by resort to violent means. When so many persons enter upon a life of crime and form a group which is likely to become an organized gang, it is clear that there is great danger in letting them loose. In order to maintain themselves they take to robbery in an organized fashion and it tends to become a habit or a way of life from which it is difficult to make a break. If one who has been found guilty of such an offence is released on furlough, there is no guarantee that he will not indulge in similar activity as soon as he is let large. None of the twin objects of punishment of imprisonment would then he served. Neither would he be reformed nor would the society remain immunized from his criminal activity for the specified period. It would be dangerous to the society to release him on furlough merely out of considerations of penal reform and humane treatment. As observed earlier, consideration of sympathy for him cannot be permitted to over-shadow the consideration regarding security of the society. Similarly with regard to the lesser offence of robbery, it would be extremely hazardous to let the prisoner loose before the expiry of the term of imprisonment. It would be hazardous to do so because when one abandons honest labour for the career of theft or intimidation coupled with violence (which beings easy money though at some risk) it tends to become a way of life and the temptation is too great to resist when the prisoner is at large. The offences of robbery and dacoity, therefore, fall within a class by themselves. The classification is based on the danger inherent in releasing on furlough those who are proved to have unhesitatingly committed crimes against person as well as property and such crimes by their very nature are habit forming and repetitive. It is, therefore, not possible to say that the classification is irrelevant or that it has no nexus with the objective sought to be achieved. It will be recalled that the object is two-fold (1) to enable the convict to bleak the thickles his habit and (2) to immanize the society at least for a specified period. It was, however, argued by counsel that if a more serious crime like murder was not included in the list, there was no rational basis for including the offences relating to robbery and dacoity within the fold. Here again, the argument ignores the fact that by and large an offence of murder is committed by a person under some real or imagined provocation or in a moment of passion and the perpetrator of the crime usually has a motive or animus against a particular individual or individuals and not against the society at large. There is, therefore, less danger of his committing a similar crime when he is one leave on furlough. Robbery and dacoity are offences which are directed against the entire society at large and the entire society is exposed to the danger emanating from them. In case of murder only that person against whom the perpetrator has a motive or animus alone is exposed to danger from him and not others. So far as robbery and dacoity are concerned, any victim is a good victim and the entire society is exposed to the risk. It is, therefore, clear that the offences of robbery and dacoity fall in a different category. Whether or not the offence is more serious is not the relevant consideration for withholding furlough. The relevant consideration is whether his release will hamper his reform or expose the society to the very danger to shield from which the criminal is imprisoned. Therefore, the fact that murder may be by and large considered to be a more serious crime is not a circumstance which in any way impairs the reasoning underlying the selection of the offences falling under the specified class viz., the offences relating to robbery and dacoity. Again, the mere fact that some other offences also deserve to be included in the list of offences in respect of which furlough should not be granted (even if the argument is valid) is not a good ground for not including the offences or robbery and dacoity. By experimentation, and by gaining experience the list may be enlarged or modified from time to time. A classification which is otherwise rational and purposeful and bears a nexus with the underlying object of the legislation cannot be branded as obnoxious merely because another class also ought to be brought within the sweep of the legislation. It is not true to say that all evils must be remedied by the same legislation in order to be immune from the charge of discrimination. It is not a valid argument that the legislature can legislate in respect of all evils or none. Legislation can be implemented by stages. The mere circumstance, that other class of offences may also be included within the list will not render the class which is actually included devoid of rational basis. Under the circumstances. It is not possible to uphold the contention that Rule 4(2) is discriminatory in character and is violative of Article 14 of the Constitution of India. We are of the opinion that the classification has a rational basis and has a distinct nexus with the underlying object of the legislation and that it does not introduce any element of hostile discrimination.
Considering the reasons given in the aforesaid judgment, if the Parliament says that sentence of prisoners convicted for the offences under the Narcotics Act shall not be suspended or remitted, it cannot be said that the classification between the prisoners convicted for the offences punishable under the Narcotics Act and the prisoners convicted under the Indian Penal Code, Customs Act or under any other law for the time being in force is, in any way, unreasonable. The object of introducing the said Section is to see that drugs abuse is controlled and minimised. To check the menace of dangerous drugs flooding the market, it the Parliament wants that punishment should be deterrent, the Court should implement the law as it is. The problem of drug-trafficking is of grave national importance affecting the lives of number of young persons. It is a menace that must be fettered and curbed by all concerned with all seriousness. We should not fail to realise that adverse effect of the drugs is tremendous and is concerned with the life and death situation of numerous persons, and in that set of circumstance the Court should not resort to the so-called theory of reformation of prisoners and interfere with the decision of the Parliament, which is based upon reports of various Committees and to give a set-back to the move directed at prohibiting the trade of dangerous drugs. Instead of attempting to take a holistic view of the harmful socio-economic consequences and health hazards that would accompany trafficking illegally in the dangerous drugs, the Court should implement the law in the spirit with which the Parliament, after due deliberation has amended.
18. It would be worth while to reproduce the observations made by the Supreme Court in the case of Durand Didier v. Chief Secretary, Union Territory of Goa Dealing with the contention that less minimum imprisonment and fine should be imposed under the Narcotics Act, the Court has observed that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. The relevant observations of the Supreme Court are as under:
The trial Court while inflicting the punishment has expressed its view about the drug menace spreading in Goa as follows:
The spreading of the drugs in Goa is becoming day by day a terrible menace which has completely destroyed the very fiber of our society being also instrumental in subverting the tender soul of our young generation which is being badly contaminated by such danger in a very alarming provisions calling for severe punishment in case of illegal possession and transportation of drug meant for personal consumption and eventual trade.
24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and becoming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.
18.1. In view of the aforesaid discussion, there is no substance in the contention raised by the learned Advocate Mr. Mehta that Section 32A of the Narcotics Act is violative of Article 14 and/or Article 21 of the Constitution of India or that the word ‘shall’ should be read as ‘may’. In the result, considering Section 32A of the Narcotic Drugs & Psychotropic Substances Act, 1985, as it is, prisoners, who are convicted under the said Act, are not entitled to be released on parole or furlough. Hence, these petitions are dismissed.