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Gufran Hasan Qureshi v. State Of Maharashtra .
Factual and Procedural Background
This petition was filed by a convict serving a sentence of 10 years rigorous imprisonment and a fine of Rs. 1,00,000/-, with a default clause of a further two years' imprisonment, following conviction under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (N.D.P.S. Act). The conviction was recorded by the Additional Sessions Judge, Malegaon, District Nasik in Sessions Case No. 98 of 1991, with the sentence dated 2nd April, 1992. The petitioner's Criminal Appeal No. 247 of 1992 was issued by this Court on 20th August, 1993; a Criminal Application for review (No. 1119 of 1994) of that order was dismissed on 28th June, 1994.
The petitioner applied through jail authorities for release on parole on the ground of his wife's illness. The Court was asked to consider whether, in view of section 32-A of the N.D.P.S. Act, it could grant the petitioner the benefit of the Prisons (Bombay Furlough and Parole) Rules, 1959, specifically rule 19 which deals with parole in cases of serious illness or death of a nearest relative.
Legal Issues Presented
- Whether, in view of the provisions of section 32-A of the N.D.P.S. Act, a court may grant the benefit of the Prisons (Bombay Furlough and Parole) Rules, 1959 (in particular rule 19 relating to parole), to a person convicted under the N.D.P.S. Act (other than those covered by section 27).
Arguments of the Parties
Petitioner's Arguments (as presented)
- The petitioner, through his counsel Shri Toraskar, contended that he should be released on parole in view of the illness of his wife and that he would be entitled to parole on such terms and conditions as the Court deemed fit, invoking rule 19 of the Prisons Rules.
State's Arguments (as presented)
- The Public Prosecutor, Smt. Tahilramani, opposed the parole application and submitted that section 32-A of the N.D.P.S. Act prohibits suspension, remission or commutation of sentences awarded under the Act (except those under section 27), and that granting parole would amount to suspension and granting furlough would amount to remission—both of which are impermissible under section 32-A for convictions under the N.D.P.S. Act (other than section 27 cases).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Durand Didier v. Chief Secretary, Union Territory of Goa ((1990) 1 SCC 95 : AIR 1989 SC 1966) | Illustration of Parliament's concern about drug trafficking and legislative intent to provide deterrent punishments under the N.D.P.S. Act; support for non-interference with sentences in serious drug cases. | Cited to show the seriousness of the drug menace and the legislative background for stringent sentences; the Court referred to Durand Didier's observations supporting the non-interference with sentences such as 10 years R.I. in appropriate cases. |
| Maktool Singh v. State of Punjab ((1999) 2 SCALE 26) | Held that section 32-A (excepting section 27 cases) removes the power of courts to suspend sentence (including during pendency of appeal) and takes away certain executive powers under CrPC sections 432-434; section 32-A has overriding effect. | Relied upon to conclude that section 32-A takes away powers to suspend, remit or commute sentences awarded under the N.D.P.S. Act and that such powers cannot be exercised by the High Court or State government except as expressly saved. |
| Mohd. Ismail S/O Karim Patel Ansari… v. State of Maharashtra ((1998) 1 Mh LJ 25 : 1998 Cri LJ 136) | Held that furlough amounts to remission of sentence and that remission for convictions under NDPS (e.g., section 22) is impermissible under section 32-A. | Placed as supporting authority for the proposition that furlough/remission is barred by section 32-A for NDPS convictions. |
| Hassan Ismail Dalvi v. State of Maharashtra (Writ Petition No. 648 of 1998, decided 10-08-1998; reported 1999 (2) Mh. L.J 525) | Rejected challenge that section 32-A violated Articles 14 and 21; held power to grant suspension/remission/commutation cannot be exercised for NDPS convictions except where sections 33 and 27 apply. | Used to support the view that constitutional challenge to section 32-A was repelled and that the power to grant relief like parole/furlough is constrained by section 32-A. |
| Shaikh Salim @ Guddu s/o Sheikh Gani v. State of Maharashtra ((1996) 1 Mh LJ 843) | Held section 32-A is not violative of Articles 14 and 21 and that NDPS offences (barring those within sections 33 and 27) form a special class justifying the special statutory treatment. | Cited to uphold the constitutionality of section 32-A and to confirm that the special nature of the NDPS Act justifies excluding benefits like suspension/remission/commutation. |
| Ishwar Singh M. Rajput v. State of Gujarat (V-1991 (2) Crimes 160) | Support for the view that section 32-A overrides provisions permitting furlough/parole; NDPS convicts (except as provided) are not entitled to furlough/parole. | Mentioned as part of a body of High Court decisions expressing unanimity that section 32-A bars furlough/parole for NDPS convicts. |
| Berlin Joseph @ Ravi v. State (IV-1992 (1) Crimes 1222) | Support for the proposition that section 32-A supersedes other rules allowing parole/furlough for NDPS convicts. | Relied upon as an example of High Court authority aligning with the majority view that parole/furlough are not permissible for convicts under the NDPS Act (except as specifically exempted). |
| Anwar v. State (1994 Cri LJ NOC 414 (Raj.)) | Another High Court decision supporting the view that section 32-A prevents release on furlough/parole for NDPS convicts (subject to the statutory exceptions). | Cited to demonstrate the consistent High Court position that section 32-A overrides Prisons Rules regarding parole/furlough for NDPS convictions. |
| Sita Singh v. State of Punjab (1995 Cri LJ 1733) | High Court authority indicating that section 32-A bars parole/furlough for NDPS convicts except where statute permits. | Used to show unanimity among High Courts that section 32-A prevents suspension, remission or commutation (including furlough/parole) for NDPS convictions outside statutory exceptions. |
Court's Reasoning and Analysis
The Court began by identifying the statutory provision at issue: section 32-A of the N.D.P.S. Act, which provides that, subject to section 33, no sentence awarded under the Act (other than section 27) shall be suspended, remitted or commuted. The Court noted that the petitioner had been convicted under section 21 and not under section 27, and that therefore the limited exceptions in section 33 did not apply to him.
The Court examined the applicable prison rule (rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959) which permits release on parole in cases such as serious illness of a near relative, subject to police report and conditions. The petitioner's counsel relied upon rule 19, arguing entitlement to parole for the illness of the petitioner's wife.
The State's position was that granting parole (or furlough) would amount to suspension or remission of sentence, which is specifically proscribed by section 32-A for convictions under the N.D.P.S. Act (other than those covered by section 27). The Court turned to the legislative history (the Statement of Objects and Reasons of the N.D.P.S. (Amending) Act No. 2 of 1989) to note Parliament's intent to strengthen controls on drug trafficking and to make punishments more stringent, specifically by providing that no sentence under the Act shall be suspended, remitted or commuted.
The Court then reviewed relevant case law. It cited the Supreme Court decision in Durand Didier about the seriousness of the drug menace and the need for deterrent punishments, and the Supreme Court's later decision in Maktool Singh which directly addressed the effect of section 32-A, holding that (except for section 27 cases) section 32-A removed the power to suspend sentences and had an overriding effect over powers in the CrPC and executive remission provisions. The Court also surveyed decisions of its own and other High Courts which had uniformly concluded that section 32-A prevents furlough/parole (being forms of remission or suspension) for convicts under the N.D.P.S. Act except where the statute itself provides otherwise.
On this basis, the Court concluded that the statutory command in section 32-A has overriding effect over the Prisons Rules, and that neither the State government nor the High Court has power to order suspension, remission or commutation of sentences awarded under the N.D.P.S. Act except in the limited cases saved by the statute itself (e.g., where section 33 and section 27 apply). Consequently, the petitioner's asserted right under rule 19 was subject to the overriding statutory prohibition in section 32-A.
Holding and Implications
Holding: Writ petition dismissed.
Implications:
- The petitioner's application for furlough/parole under rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959 was rejected as being inconsistent with the mandate of section 32-A of the N.D.P.S. Act.
- The Court held (consistent with cited authorities) that section 32-A has an overriding effect and removes the power to suspend, remit or commute sentences awarded under the N.D.P.S. Act, except in cases specifically excluded by the statute (for example, those covered by section 27 or section 33 as applicable).
- Direct consequence for the parties: the petitioner will not be released on parole or furlough on the basis of rule 19; his application is denied and the writ petition is dismissed.
- The Court treated the question as one of statutory construction and application of settled precedents rather than as an occasion to lay down a new principle; the decision applies established authority that section 32-A limits parole/furlough powers in NDPS cases.
Writ petition dismissed.
1. Rule.
2. By consent, rule made returnable forthwith and heard both the learned Counsel; Shri Toraskar Advocate appointed for the petitioner and Smt. Tahilramani, Public Prosecutor for the State.
3. This is a petition by a convict who is undergoing sentence of 10 years imprisonment pursuant to his conviction under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “N.D.P.S Act”) by the Additional Sessions Judge, Malegaon, District Nasik in Sessions Case No. 98 of 1991 passed on 2nd April, 1992. Under the said order he was sentenced to 10 years R.I and a fine of Rs. 1,00,000/- in default to suffer further imprisonment for two years. It is brought to our notice that the petitioner's Criminal Appeal No. 247 of 1992 was issued by this Court on 20th August, 1993. Criminal Application No. 1119 of 1994 for review of the order dated 20th August, 1993 was dismissed by this Court on 28th June, 1994.
4. The petitioner has applied through jail that, on the ground of illness of his wife, he should be granted leave on parole to enable him to treat his ailing wife. The short point which arises for our consideration is whether in view of the provisions of section 32-A of the N.D.P.S Act, is it open for us to grant the petitioner the benefit of the provisions of the Prisons (Bombay Furlough and Parole) Rules, 1959 (for short “Prisons Rules”). Since the petitioner has applied for parole we are directly concerned with the provisions of rule 19 of the said Rules.
5. section 32-A of the N.D.P.S Act reads as under:
“32-A. 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.”
6. Admittedly, the petitioner has not been convicted and sentenced under section 27 of the N.D.P.S Act and there is no question of the benefit of the provisions of the Probation of Offenders Act, 1958 nor of the provisions of section 360 of the Code of Criminal Procedure, 1973. It is only if a person has been granted the benefit of the provisions of the Probation of Offenders Act, 1958 or of the provisions of section 360 of the Code of Criminal Procedure, 1973, where a person who is under 18 years of age, has been convicted and is punished under section 26 or 27 of the N.D.P.S Act that an exception could be made. Section 33 of the N.D.P.S Act reads as under:
“33. Application of section 360 of the Code of Criminal Procedure Code, 1973 and of the Probation of Offenders Act, 1958. — Nothing contained in section 360 of the Code of Criminal Procedure, 1973 (2 of 1974), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under section 26 or section 27.”
7. Since we are not concerned with a case of conviction under sections 26 or 27 of the N.D.P.S Act, we need not elaborate this point any further.
8. Rule 19 of the Prisons (Bombay Furlough and Parole) Rules, 1959 as amended reads as under:
“19. When a prisoner may be released on parole. — A prisoner may be released on parole for such period not exceeding thirty days at a time, as the Competent Authority referred to in rule 18, in its discretion may order, in cases of serious illness, or death of nearest relative such as mother, father, sister, brother, children, spouse of the prisoner; or in case of natural calamity such as house collapse, floods, fire. No such parole or extension of parole shall be granted without obtaining a police report in all cases except in the case of death of his nearest relatives mentioned above.
Provided that a prisoner shall not be released on parole for one year after expiry of his last parole except in case of death of his nearest relatives mentioned above.”
9. Having regard to the illness of the petitioner's wife, Shri Toraskar, the learned Counsel for the petitioner contends that the petitioner would be entitled to be released on parole on such terms and conditions as this Court may deem fit. On the other hand, the learned Public Prosecutor Smt. Tahilramani opposes the application for parole and contends that having regard to the mandate of section 32-A of the N.D.P.S Act, no sentence awarded under the said Act can be suspended, remitted or commuted. She contends that grant of parole would amount to suspension whereas grant of furlough would amount to remission; neither of which is permissible if a convict has been sentenced for the offence punishable under the N.D.P.S Act other than section 27 of the said Act.
10. We may at the outset refer to the statement of Objects and Reasons of the N.D.P.S Amending Act No. 2 of 1989 under which section 32-A was inserted in the N.D.P.S Act. The Statement of Objects and Reasons discloses that Parliament was concerned with the growing menace of illicit drug trafficking and its delirious effects on the youth of the country and indeed all over the world. The use of narcotics drugs had threatened to destroy the very fibre of the society and had become instrumental in subverting the tender souls of the younger generation which was badly contaminated by drug abuse. It was because of this that the Parliament thought it fit to insert section 32-a in the parent act. The Statement of Objects and Reasons reads as under:
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 deterrent 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.
11. In Durand Didier v. Chief Secretary, Union Territory of Goa, (1990) 1 SCC 95 : AIR 1989 SC 1966, the Apex Court considered the threats posed by the menace of drug traffic and abuse of drug and narcotics by youth of the country. In para 24 of the judgment at page 1971 the Apex Court observed as under:
“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 booming 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. As we have now rejected the plea of the defence holding that the penal provisions of section 27(a) has no role to play as the prohibited drugs and substances possessed by the appellant were far in excess of the quantity mentioned in Column 3 of the table under the notification, the sentence of 10 years rigorous imprisonment and the fine of Rs. 1,00,000/- with the default clause as modified by the High Court does not call for interference.”
12. Recently, the Apex Court had occasion to consider the question as to whether suspension, remission or commutation of any sentence awarded under the N.D.P.S Act can be ordered in view of provisions of section 32-A of the N.D.P.S Act. Apex Court considered the provisions of section 32-A as also section 36-B of the N.D.P.S Act. Section 36-B of N.D.P.S Act provides that the High Court may exercise, so far as may be applicable, all the powers conferred by Chapter XXIX and XXX of the Code of Criminal Procedure, 1973, on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court. In Maktool Singh v. State Of Punjab, (1999) 2 SCALE 26, Apex Court came to the conclusion that section 32-A of the N.D.P.S Act (excepting the cases falling under section 27 of the said Act) has taken away the powers of the Court to suspend the sentence either during the pendency of any appeal or otherwise. Similarly, the power of the Government under sections 432, 433 and 434 of the Code of Criminal Procedure was also taken away. section 32-A of the N.D.P.S Act would have an overriding effect with regard to the powers of suspension, remission and commutation provided under the Criminal Procedure Code. The Apex Court also considered the submission that if it was held that the High Court had no power to suspend sentence under any contingency, the long duration of pendency of appeals would result in serious miscarriage of justice in some cases. The Apex Court, being alive to the situation, directed that the matters could be expedited to ensure speedy disposal. Relevant observations are to be found in paras 24 and 25 of the judgment at page 32.
13. Similar view has been taken by this Court in the following 3 cases:
(i) In Mohd. Ismail S/O Karim Patel Ansari…Applicant; v. State Of Maharashtra…., (1998) 1 Mh LJ 25 : 1998 Cri LJ 136, the Division Bench took a view that grant of furlough has a result of releasing the convict who was convicted for the offence punishable under section 22 of the N.D.P.S Act. Since furlough is a remission of sentence, it was held that such a remission of sentence under section 22 of the N.D.P.S Act was impermissible in law in view of the mandate of section 32-A of the N.D.P.S Act, 1985:
(ii) In Hassan Ismail Dalvi… v. State Of Maharashtra….. Writ Petition No. 648 of 1998 decided on 10th August, 1998 with Criminal Writ Petition No. 748 of 1998 (since reported in 1999 (2) Mh. L.J 525) the question arose as to whether mandamus can be issued for grant of parole or furlough to the petitioners. An argument was advanced that the provisions of section 32-A of the N.D.P.S Act would be violative of the provisions of Articles 14 and 21 of the Constitution of India. The argument has, in term, been rejected and it has been held that the power to grant suspension, remission or commutation of the sentence cannot be exercised if a convict was sentenced for an offence punishable under the N.D.P.S Act excepting where his case fell under sections 33 and 27 of the said Act;
(iii) In Shaikh Salim @ Guddu s/o Sheikh Gani v. State of Maharashtra, (1996) 1 Mh LJ 843, Division Bench of this Court considered the question as to whether section 32-A of the N.D.P.S Act was violative of Articles 14 and 21 of the Constitution of India. It was held that the offences under the N.D.P.S Act barring those to which sections 33 and 27 of the said Act applied fell into a separate and special class. Legislative history leading to the passing of the N.D.P.S Act made it clear that the law was enacted to make stringent provisions for the control and regulation of operation relating to narcotic drugs and psychotropic substances as also for forfeiture of property derived from or used in illicit traffic in narcotic drugs and psychotropic substances. The law was enacted to implement the provisions of International Conventions on Narcotic Drugs and Psychotropic Substances as is clear from the preamble of the N.D.P.S Act. In this view of the matter, the Division Bench came to the conclusion that there was no substance in the challenge to the validity of the provisions of section 32-A of the N.D.P.S Act on the ground that said provision violated either Article 14 or 21 of the Constitution. It was, therefore, held that since section 32-A of the N.D.P.S Act was a special provision in a special Statute dealing with a special object it could not be said to be unreasonable or affecting the life and liberty of a convict so as to be violative of the provisions of Articles 14 and 21 of the Constitution of India.
14. We may also indicate that similar view has been expressed by many other High Courts though it is not necessary for us to elaborate the said decisions. On the question as to whether section 32-A of the N.D.P.S Act, override the provisions of the Prisons Rules, there seems to be unanimity of views amongst the High Courts that having regard to the provisions of section 32-A of the N.D.P.S Act, the persons who are convicted under the said Act, barring the exceptions, are not entitled to be released either on furlough or parole. No suspension, remission or commutation of any sentence awarded under the N.D.P.S Act can be ordered excepting in cases which are specifically excluded by section 32-A of the N.D.P.S Act. This view has been expressed in (i) Ishwar Singh M. Rajput v. State of Gujarat, V-1991 (2) Crimes 160, (ii) Berlin Joseph @ Ravi v. State, IV-1992 (1) Crimes 1222 (iii) Anwar v. State, 1994 Cri LJ NOC 414 (Raj.); and (iv) Sita Singh v. State of Punjab, 1995 Cri LJ 1733.
15. In view of the above, it is clear that there is no power to suspend, remit or commute the sentence of a convict who has been sentenced for the offence punishable under the N.D.P.S Act excepting the cases exempted under section 32-A itself. Having regard to the mandate of section 32-A neither the State Government nor even the High Court has power to order suspension, remission or commutation of such a sentence. Thus, the right of the petitioner, if any, under rule 19 of the Prisons Rules, quoted above would be subject to the provisions of section 32-A of the N.D.P.S Act. Since the statutory provisions contained in section 32-A will have overriding effect, petitioner's application for grant of furlough under rule 19 of the Prisons Rules is liable to be rejected. In the circumstances, writ petition is rejected.
Writ petition dismissed.
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